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).
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