The days of protests, police repression and rioting in Ferguson, Missouri in the United States has exposed a great deal about the US for the world to see. Whether the images of peaceful protesters gassed and beaten by US police filled you with horror or smug vindication, the fact remains that the image of a peaceful idyllic American heartland devoid of racism and social conflict has been put to rest forever.
Polls show that Americans on all sides of the political spectrum think President Barack Obama has handled the rioting after the Michael Brown shooting well but there is a strong contingent, especially in the African American community, who say the president can and should do more, begging the question: What can he legally do about Ferguson? His options aren’t as wide ranging as many think.
President Obama is secure in his second term as he never has to face re-election again, and the mid-term elections, while they look grim for his Democratic Party, won’t hinge on his actions regarding Ferguson. One would think he is in the perfect position to take bold and sweeping action addressing racial violence and civil liberties violations in Ferguson. However, it’s not that simple.
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The president’s main power is the ability to persuade. The checks and balances by Congress and the judiciary branches of the government make it almost impossible for a president to do anything without getting approval or at least tacit consent from the other branches. President Obama, a Democrat, has faced a radicalised Republican opposition in the lower Congressional house for years that makes it almost impossible for him to enact legislation no matter how persuasive he may be.
On a purely personal level, President Obama’s policy options are limited by his own particular brand of politics. Unlike the majority of US presidents who came to the White House after governing states, Obama came to the White House after a career as a legislator. He is by professional and political nature a consensus builder, more driven to come up with collective solutions than bold individual action. This means he has been less likely to make the kind of horrible political and personal decisions of some of his predecessors but at the same time he often looks more nuanced and cautious than the US public wants.
Barack Obama has already sent the US’ top cop, Attorney General Eric Holder, to Ferguson to conduct a thorough investigation; he has already been made aware of initial findings and can no longer claim that he is remaining cautious until “more facts” are known. Regardless of the president’s personal preferences and constitutional limitations, he can act now – and there are three things he could do immediately to address what has occurred in Ferguson using the power of the Presidency.
The president could ask the Senate, the upper house in Congress controlled by his Democratic Party, to formally condemn any abuse of the US press at home or abroad. President Obama has never had trouble condemning restrictions or abuses of the press when it occurs in Egypt, Turkey or any other foreign nation, he could do the same at home. A formal condemnation by the US Senate signed by President Obama is not simply symbolic posturing or a cynical attempt to win favour with the American reporters.
A formal Senate condemnation called for by the president would give legislative heft to any lawsuits or investigations brought forth by reporters who suffered at the hands of the Ferguson Police Department. It would also strengthen the expanded investigation by Attorney General Eric Holder into possible civil rights violations of the press by the Ferguson Police. Lastly, a formal condemnation would set a precedent that, restrictions on the free press in the US are not simply constitutionally protected but the president will proactively investigate and prosecute offenders.
The increased militarisation of local police has been growing in the US since the September 11 terror attacks. Very few Americans have paid attention as increasingly SWAT teams and military hardware began to seep into standard police equipment. The searing images of local police in military camouflage shooting tear gas from armoured cars and using rubber bullets on unarmed protesters has angered and alarmed many Americans and observers from around the world.
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This has all happened because of Programme 1033, a Department of Defense programme that allows local police departments to get access to surplus military equipment for free. Currently, the programme allows for any police department in the US to request surplus military equipment which can range from file cabinets and flashlights to armoured vehicles, flash grenades and tear gas.
There is no oversight for this programme, no requirements that local police are properly trained in the use of the surplus military equipment or that the crime in the local area warrants the acquisition of military grade weapons. President Obama can sign an executive order to suspend the programme immediately and impose new rules, regulations and oversight for it.
The president could also institute a policy that any police department with a history of racial profiling or police brutality (data which is collected by the Department of Justice) be suspended from the programme pending department reform and re-application. As commander-in-chief of the US armed forces, President Obama could legally enact this change without approval from Congress or review by the Supreme Court. While this won’t do anything to change what has happened on the ground in Ferguson, it could definitely lessen the chance of similar violent overreactions by police in the future.
The president could ask for a special prosecutor to be assigned to investigate the shooting of Michael Brown in parallel to the Ferguson police department and county attorney. The federal government does have the ability to assign special prosecutors to cases because they are less prone to be influenced by local politics.
There is already tremendous scepticism towards the Ferguson police department’s investigation of the shooting, and many local activists and some elected officials doubt the objectivity of State Prosecutor Robert McCulloch should he have to go to trial against local police whom he has long political and familial ties with. If Officer Darren Wilson is not brought to trial, or worse goes to trial and is found not guilty after a half-hearted effort by McCulloch, the city will likely erupt into violence again.
President Obama cannot unilaterally take over the town of Ferguson, appoint a new mayor, convict Officer Darren Wilson and demand the local police force reflect the demographics of the community it serves. But that doesn’t mean there aren’t real concrete options to address the worst rioting in almost two decades. Whether his inaction is born out of personal caution or legal manoeuvring is not clear. However, both history and the US are waiting for the president to act with more authority. He cannot claim that his hands are legally tied.
Jason Adam Johnson is an US professor of political science and communications, political commentator, and writer. He is the author of the book Political Consultants and Campaigns: One Day to Sell.
Follow him on Twitter: @DrJasonJohnson