April 18, 2012 |
When Barack Obama took office, he was the civil liberties
communities’ great hope. Obama, a former constitutional law professor,
pledged to shutter the military prison at Guantanamo Bay, Cuba, and run a
transparent and open government. But he has become a civil
libertarian’s nightmare: a supposedly liberal president who instead has
expanded and fortified many of the Bush administration’s worst policies,
lending bipartisan support for a more intrusive and authoritarian
federal government.
It started with the 9/11 attacks. Within a week, Congress, including
many liberals, gave the White House blanket authority to wage a war on
the terrorists. A month after that, Congress passed the USA Patriot Act,
authorizing many anti-terrorism measure including expanded
surveillance. By mid-November, the White House ordered creation of
military tribunals to try terrorists who were not U.S. citizens.
Bush quickly expanded covert operations, creating a shadow arrest,
interrogation and detention system based at Guantanamo that violated
international law and evaded domestic oversight. While the Supreme Court
eventually ruled that detainees have some rights, the precedent that
the Constitution does not restrict how a president conducts an endless
war against a stateless enemy was firmly planted. In response, groups
like the American Civil Liberties Union
proposed
reforms the newly elected president could make. What few anticipated
was how he would embrace, expand and institutionalize many of Bush’s war
on terror excesses.
President Obama now has power that Bush never had. Foremost is he can (and has)
order the
killing of U.S. citizens abroad who are deemed terrorists. Like Bush,
he has asked the Justice Department to draft secret memos authorizing
his actions without going
before a federal court or disclosing them. Obama has
continued
indefinite detentions at Gitmo, but also brought the policy ashore by
signing the National Defense Authorization Act of 2012, which authorizes
the military to arrest and indefinitely detain anyone suspected of
assisting terrorists, even citizens. That policy,
codifying
how the Bush treated Jose Padilla, a citizen who was arrested in a bomb
plot after landing at a Chicago airport in 2002 and was transferred
from civil to military custody,
upends the 1878’s Posse Comitatus Act’s ban on domestic military deployment.
Meanwhile, more than a decade after the 9/11 attacks, Washington’s
wartime posture has trickled down into many areas of domestic
activity—even as some foreign policy experts say the world is a much
safer place
than it was 20 years ago, as measured by the growth in free-market
economies and democratic governments. Domestic law enforcement has been
militarized—as most visibly seen by the tactics used
against the Occupy protests and also
against
suspected illegal immigrants, who are treated with brute force and have
limited access to judicial review before being deported.
One of Bush’s biggest civil liberties breaches, spying on
virtually all Americans via their telecommunications
starting in 2003, also has been expanded. Congress
authorized the effort in 2006. Two years later, it
granted legal immunity to the telecom firms helping Bush—a bill Obama
voted for. The National Security Agency is now building its largest data processing center ever, which Wired.com’s James Bamforth
reports
will go beyond the public Internet to grab data but also reach
password-protected networks. The federal government continues to require
that computer makers and big Web sites
provide access for domestic surveillance purposes. More crucially, the NSA is increasingly relying on private firms to
mine data,
because, unlike the government, it does not need a search warrant. The
Constitution only limits the government searches and seizures.
The government’s endless wartime footing is also seen in its
war on whistleblowers. Obama has continued cases brought by Bush, such as
going after the "leaker" in the warrantless wiretapping story broken by the
New York Times in
2005, as well as the
WikiLeaks case, prosecution of
Bradley Manning, and
others
for allegedly mishandling classified materials related to the war on
terrorism. Its suppression of war-related information given to
journalists extends overseas, where the State Department this month has
blocked a visa for a
Pakistani critic from speaking in the U.S. The White House also recently
pressured Yemen’s leader to jail the reporter who exposed U.S. drone strikes. Meanwhile, the administration has
stonewalled Freedom of Information Act requests, particularly the Justice Department, which has issued the secret wartime memos.
How bad is it? Anthony Romero, the ACLU executive director, exclaimed in June 2010 that Obama “
disgusted” him. Meanwhile, the most hawkish Bush administration officials have defended and praised Obama.
Last summer, liberal lawyer-journalist Glenn Greenwald
tallied
a list of Bush warrior endorsements. Jack Goldsmith, the former DOJ
officials who approved the torture and domestic spying efforts,
wrote in
The New Republic in May 2009 that Obama actually was waging a more effective war on terror than Bush.
“The new administration has copied most of the Bush program, has
expended some of it, and has narrowed only a bit,” Goldsmith wrote.
“Almost all of the Obama changes have been at the level of packaging,
argumentation, symbol and rhetoric.” Bush’s final CIA director, General
Michael Hayden—whose confirmation Obama opposed as a senator—told CNN
there was a “powerful continuity between the 43rd and 44th presidents.”
And in early 2011 Vice-President Dick Cheney told NBC News, “He’s
learned that what we did was far more appropriate than he ever gave us
credit for while he was a candidate.”
All of these civil liberties issues—executive authority to order
assassination of citizens, unlimited detention without charges at
Guantanamo, authority to deploy the military domestically to arrest and
indefinitely detail terrorism suspects, a parallel "due process" that is
outside the judicial branch, the expansion of the surveillance state,
the increased militarization of local police and federal agencies
especially ICE, the increasingly punitive treatment of protesters
including strip searches, the war on whistleblowers, and others—are very
complicated. The details are filled with shades of gray.
Bradley Manning’s harsh treatment, for example, is thought to be tied
to the White House’s fear that the vast WikiLeaks cache contained
references to the pursuit of Osama Bin Laden before his
assassination—and could have alerted Al Qaeda. Better data mining and
analysis could have detected the 9/11 attacks, the Patriot Act’s
defenders past and present have repeatedly argued. But from a civil
liberties perspective, Obama has more than chipped away at freedom from
federal intrusion. The underlying problem is the tactics and values
forged in foreign war have seeped into domestic policing.
“We are witnessing the bipartisan normalization and legitimization of
a national security state,” Jack Balkin, a liberal Yale University Law
School professor,
told the
New Yorker
in a 2011 feature about a prominent NSA whistleblower. “The question is
not whether we will have a surveillance state in the years to come, but
what sort of state we will have,” he wrote in a prescient
law review article published early in Obama’s presidency.
The larger dangers, Balkin said, was that the government is creating a
“parallel track of preventative law enforcement that bypasses
traditional protections in the Bill of Rights.” Moreover, he worries
“traditional law enforcement and social services will increasingly
resemble the parallel track.” And because the Constitution only
restricts government actions, not “private parties, government has
increasing incentives to rely on private enterprise to collect and
generate information for it.”
“The major defining feature of the Obama administration on this issue
is the eagerness with which it embraced the stunning evisceration of
civil rights and liberties that was a hallmark of the Bush
administration, and then deepened those outrageous programs,” said Mara
Verheyden-Hilliard, executive director of the Partnership for Civil
Justice Fund, who is an attorney representing many Occupy protesters
swept up in last fall’s mass arrests. “He has successfully counted on
the acquiescent silence of the liberals.”
Eric Holder, the Defender
The biggest difference between Bush and Obama on civil liberties and
the war on terror is the Obama administration is more attuned to the
optics of trying to appear reasonable as it conducts much of the same
policies. To be fair, Obama has not kidnapped innocent people en masse
in Afghanistan and warehoused them in Cuba, as Bush did. But he has
launched drone strikes in numerous counties, where the victims include
children.
In 2010, the ACLU and New York-based Center for Constitutional Rights, which has represented many Guantanamo detainees,
filed
a suit asking a federal court to set legal standards when the
government could use lethal force against a U.S. citizen who was
overseas but not on an active battlefield. That suit was dismissed. But
Eric Holder, perhaps
giving a victory
to critics who have condemned the administration’s secrecy, gave an
speech this March at Chicago’s Northwestern University School of Law
explaining Obama’s wartime actions and authority. The speech was exactly what Goldsmith had described a year earlier in
The New Republic—nearly identical on substance to Bush administration policy, but with more attention to the packaging for the public.
“In the long history of the world, only a few generations have been
granted the role of defending freedom in its hour of maximum danger,”
Holder began, quoting President John F. Kennedy’s
inaugural
at the height of the Cold War. “But just as surely as we are a nation
at war, we are also a nation of laws and values,” Holder continued,
saying, “Our actions must always be grounded on the bedrock of the
Constitution.”
Holder explained the challenge for government was what to do after
someone is found who is suspected of participating in a terrorist plot
against the United States. He said the federal courts have done an
excellent job in dealing with suspected terrorists since 9/11—and those
who claim otherwise “are simply wrong.” But then Holder built the case
for using a “reformed” military commission system—granting foreign
detainees a right to counsel, a right to see evidence against them, and a
right to cross-examine witnesses.
Moreover, Holder defended the administration’s right to transfer a
terrorism suspect from civilian courts to military custody “based on the
considered judgment of the President’s senior national security team.”
And he said that in a “war with a stateless enemy” that the federal
government has a right an obligation “to target specific senior
operational leaders of Al Qaeda and associated forces,” just as the
military shot down the plane with the top Japanese Admiral who led the
Pearl Harbor attacks in World War II. “It is important to explain these
legal principles publicly,” Holder said. “The Constitution does not
require the President to delay action until some theoretical end stage
of planning—when the precise time, pace and manner of an attack become
clear.”
Holder then said there is no constitutional requirement that the
President “get permission from a federal court before taking action
against a United States citizen who is a senior operational leader of Al
Qaeda or associated forces. This is simply not accurate. ‘Due process’
and ‘judicial process’ are not one and the same, particularly when it
comes to national security. The Constitution guarantees due process, not
judicial process.”
Holder’s
arguments
sound reasonable until you stop and ask where it ends up. The U.S. is
still involved in dubious warfare efforts overseas—particularly
Afghanistan. But the full wartime powers invoked by Obama to endlessly
fight stateless terrorists, which are
on par
to Franklin Delano Roosevelt’s suspension of civil liberties in World
War II, arguably are disproportionate to the scope of military actions.
Moreover, people like Obama who are schooled in constitutional law know
there are reasons why the foundation of American democracy is based on
being a nation of laws—not arbitrary decisions by men—and are expected
to respect that distinction govern with due deference and restraint.
Those who understand Obama’s civil liberties failing best include
lawyers serving in the military, like David Frakt, a lawyer in the Air
Force and Barry University School of Law professor. He recently
wrote
on Jurist.org that Obama’s targeted assassinations—a word Holder
rejected in the speech—was the foreign policy equivalent of the domestic
"Stand Your Ground" laws that led to Trayvon Martin's killing.
“During the Bush administration, we developed the rule of ‘we can
kill you, but you can’t kill us,’” Frakt wrote. “Now, under the Obama
administration, we have added a corollary… namely, ‘you can’t kill us,
only we can kill us,’” referring to killing U.S. citizens abroad where
“capture is not feasible.” The Stand Your Ground laws “are the logical
domestic criminal counterpart to our nation’s aggressive pre-emptive
self defense doctrine, under which we have gone to war on the same
flimsy suspicions that George Zimmerman acted upon.”
The problem—as seen with more than
600 innocent people taken to Guantanamo—is that the White House can make mistakes. Cheney famously
called them “the worst of the worst,” but by 2009 only
one in seven were seen as being enemy combatants. Sen. Ron Wyden, D-OR, responding to Holder’s talk,
said
that, “Based on what I’ve heard so far, I can’t tell whether or not the
Justice Department’s legal arguments would allow the president to order
intelligence agents to kill an American inside the United States.”
Domestic civil liberties are fragile. They are not the same as a
World War II battlefield where a grunt shoots first and asks questions
later. Civil liberties take years to create and accrue, whereas a
domestic terrorist attack can occur in a flash and then unwind those
protections quickly and for many years. What started under Bush and has
continued under Obama are battlefield values that have been conflated
with domestic policing.
Just as Stand Your Ground laws turn every American going about their
lives into a threat that needs to be measured, so too does a growing
surveillance state encroach on privacy and specific constitutional
rights, such as freedom from warrantless searches, judicial review and
other constitutional checks and balances.
The question, as Balkan noted at the start of the Obama presidency,
is not whether we will have a growing surveillance and police state, but
what that state will be like. Obama has begun to wind down the wars in
Iraq and Afghanistan. But he hasn’t begun to roll back the most extreme
civil liberties abuses tied to the earliest phases of that war. Liberals
expected otherwise from a former constitutional law professor and
candidate who campaigned against the excesses of the Bush
administration.
Steven Rosenfeld covers
democracy issues for AlterNet and is the author of "Count My Vote: A
Citizen's Guide to Voting" (AlterNet Books, 2008).
No comments:
Post a Comment