VII. The Mushrooming Intelligence Complex

Candidate Barack Obama said he would “rein in” the mushrooming intelligence complex and make operations more transparent. He has, in contrast, signed off on proposals to expand that intelligence empire, as demonstrated in the PBS “Frontline” program, airing on Albuquerque’s Channel 5, late in September 2011. The United States has long had an affinity for intelligence activities. There are 16 intelligence agencies in the national government and an organizational chart of these agencies looks like a bowl of spaghetti. Yet, how over-structured the intelligence complex was before 9/11 is like nothing what happened after 9/11.

In mid-2011, the Washington Post ran a series entitled “Top-Secret America,” which described the swelling of an  intelligence complex in terms of budget, people with security clearance, buildings and intelligence-gathering capabilities. The intelligence budget in 2009 was an estimated $75 billion — the actual amount is secret — two and one-half times what it was before 9/11; more than 850,000 people hold security clearances; 30 top-secret intelligence complexes have been built or are being built in the Washington DC area; and at least 263 government intelligence organizations have been built or reorganized since 9/11. The Washington Post’s lead reporter on intelligence matters, Dana Priest, said on the “Frontline” program that there are 1,700 intelligence facilities across the nation. The intelligence budget for FY 2012 is estimated at $80 billion.

One segment of the “Frontline” program showed Dana Priest touring a shopping mall, with a real estate agent seated beside her, pointing out which buildings were involved in intelligence-related work. It was revealed that what appeared to be a four-story building might have ten stories underground.

Every day the National Security Agency intercepts and stores 1.7 billion emails, phone calls and other types of communications — equivalent to the Library of Congress, as one analyst claims. There aren’t nearly enough translators and researchers to handle this vast flow of information.

According to the Washington Post, much of this top-secret work is being done by the old Cold War giants: General Dynamics, Northrup Grumman, Raytheon and Lockheed Martin.

If we expand the list of companies and organizations working on intelligence-related activities to include counter-terrorism and homeland security activities, than the Washington Post totals grow to 1,271 government organizations and 1,931 private companies working in about 10,000 locations across the country. Just to track the flow of money to and from terrorist networks, there are 51 federal organizations and military commands operating in 15 U.S. cities.

Added to the number of governmental employees holding top-secret security clearance, there are 250,000 who are employed by private, profit-making companies. The military’s Special Operations Command, headquartered in Florida, has 1,000 personnel engaged in various types of intelligence operations.

The recent action of the U.S. House of Representatives in passing an intelligence budget underscores President Obama’s failure to rein in spending and make intelligence operations more transparent. The House voted 384 to 14 to pass and intelligence budget bill reportedly exceeding $80 billion. Obama, however, had asked for more.

The Obama administration was concerned about a provision that would have required the director of national intelligence to provide the intelligence committee with cables, memos and other information on detainees held at Guantanamo, as well as government-to-government information.

In July of 2011, Dennis Blair, the former Director of National Intelligence, accused the Obama administration of ineffective supervision and coordination of the nation’s web of intelligence agencies and operations.

What Should Obama Do or Have Done

Whatever the merits of Dennis Blair’s complaints, the more serious charge to be laid against President Obama and his administration is that nothing notable has been done to drastically cut this vast intelligence complex. We don’t need 16 intelligence agencies; instead we might want to reduce to two, one in the Pentagon and the CIA, stripped of its covert operations capabilities.

The number of organizations, companies, complexes, buildings and people with security clearances needs to be drastically reduced, as we can’t protect ourselves from every possible terrorist attack; also, we must learn how to prioritize resources. Given that the general consensus of intelligence analysts is that Al Qaeda has metastasized into a number of small, regionally dispersed groups, it is both extremely difficult and costly to identify, monitor and control individuals and small groups that might be working on a terrorist plot.

Looking at the question of violence perpetrators on a wider scale, most of the major acts of violence in the world have been committed by nation-states and not by non-state actors.

Regarding the National Security Agency, its scope of activities needs to be scaled way back, as it is creating a vast storage problem of information that can’t be analyzed. We need to also remember that a story broke during the Bush administration that N.S.A. employees were listening in on private U.S. phone conversations and sharing salacious comments of lovers among one another.

 

Obama’s Waffling on Unions and Jobs Funding

One of Ohio Governor John Kasich’s major priorities upon becoming governor was to strip the public employee unions of their collective bargaining rights. The vehicle for successfully doing that was SB 5. On November 8, 2011, Ohio voters will vote on whether or not to overturn SB 5. A “no” vote will overturn it.

Bill Press, talk show host, Democratic activist and former head of the California Democratic Party, asked Jay Carney, Obama’s spokesman, if Obama was going to urge a “no” vote on Initiative Two in the November 8 election; also, Press wanted to know if Obama had any immediate plans to travel to Ohio. Carney replied that there are no plans for President Obama to travel to Ohio and he answered the other part of the question indirectly by referring to Obama’s public opposition to Wisconsin’s attack on collective bargaining rights.

About an hour after raising the question with Carney, Bill Press received an email from an Obama deputy press secretary. The email implied that Obama was opposed to the stripping of bargaining rights; however, when Press contacted the office of U.S. Senator Sherrod Brown to tell him that Obama was urging a “no” vote on Initiative Two, Brown’s staff told him that the email that Press had received was insufficiently specific. So Press emailed the deputy and she responded that Obama opposed passage of Initiative Two.

Given that this exchange described above took place on either October 26 or 27, the moral of the story is that President Obama had no intention of taking a position on Ohio’s ballot measure until his staff was pushed very hard on the issue by a very supportive talk show host. Not taking a position on Initiative Two would certainly have hurt Obama with organized labor, but, perhaps, not taking a position may have helped him more with Independent voters. Overall, waffling on such an important issue doesn’t suggest the boldness required of a “Yes We Can!” leader.

Waffling on Jobs Proposal

When President Barack Obama introduced his roughly $450 billion jobs proposal before a joint session of Congress in September 2011, he stressed the need to pass the jobs bill “Now!” While on the stump selling his proposal to the public, he continued to stress the urgency of quick passage. My reaction was that such a major piece of legislation should be vetted in legislative committees and there should also be time for the general public to have input.

Obama’s overall proposal was tested in the U.S. Senate and the vote was tied at 50-50, with two Democratic senators and Independent Joe Lieberman joining the united 47 Republican senators. It became clear that the full proposal would not come close to clearing the very high filibuster hurdle of 60 votes and the Republican majority in the U.S. House precluded any hope off passage in that body. So Obama decided that he would cut the proposal into “bite-size” pieces, given lthat the U.S. Congress couldn’t seem to be able to swallow the entire proposal at once. As of now, the bite-size chunks have not been able to pass muster in the U.S. Senate.

What we are seeing in regard to the jobs proposal is how quickly, and without convincing explanation, Obama changes positions, and how this trait of his has hurt his credibility. Not only has he broken the package into separate pieces but the funding has been fundamentally changed. Originally, it was to be funded by eliminating tax loopholes and raising the taxes on the wealthy through a tax rate increase; then it was to funded by a 5.6 percent surcharge on those earning $1 million or more; and now each piece of the proposal will carry a separate surcharge. It is very unclear how these separate surcharges are to be accommodated in the tax code.

Although Obama supporters are ecstatic about his taking the fight to recalcitrant Republican lawmakers, it doesn’t seem to be working in terms of getting his legislative initiatives passed. It is a difficult proposition when you spend much of your presidency bending over backward to appease Republican demands and then switch to labeling them as oppositionists with whom it is impossible to work.

President Obama’s latest tactic of using executive orders to achieve change will work only on the margins and he risks tipping over into what should be a legislative function. His executive order on housing mortgages, for example, will help, at most, only one million of the estimated 11 million whose homes are under water; also, his executive order on student loans; which will reduce the term of payment from 25 to 20 years and reduce the required share of repayment on income from 15 to 10 percent will provide some needed relief to students; however, it will not have much effect on the nearly $1 trillion of student loan debt.

In the final analysis, I believe that recalcitrant Republican lawmakers in Congress must bear a large share of the blame for President Obama’s failure to get desired legislation passed, but Obama must be held at fault for breaking campaign promises, changing his position on issues and alienating his strongest supporters. If Obama had proven to be the change agent he promised to be in the presidential campaign, he probably would have retained or even increased the Democratic majority in the U.S. House and kept a strong majority in the U.S.Senate.

VI. War on Terrorism: Following the Wrong Path

Some aspects of the War on terrorism have been covered in prior blogs, such as President Obama’s heavy use of pilotless drones and restrictions on civil liberties. This blog will focus on definitions of terrorism, why nation-states are the major terrorists, how the FBI initiates terrorism plots, the exaggerated danger posed by detainees at Guantanamo Bay, the slipshod way in which a U.S. citizen can be designated as a terrorist, a further examination of military commissions and concludes with a Rand corporate report on what works to quell terrorism.

In 1981, the U.S. State Department defined terrorism “as the threat of force for political purposes in violation of domestic or international law.” For decades, the U.S. representatives at the United Nations have been adamant that “state terrorism” is a near impossibility. Private cars packed with dynamite are evil, while guided missiles launched from government jet fighters that blow up cars driven by terrorist suspects are good as gold regardless of how many children are in the back seat at the time of the “surgical strike.”

James Bovard, author of “Terrorism and Tyranny,” writes that from 1980 to the year 2000, international terrorists killed 7,745 people. In that same period, governments killed more than 10 million people in ethnic cleansing campaigns, mass executions, politically caused famines, wars and other “slaughters.” Bovard’s point is that nation-states are by far the biggest terrorists.

The American Friends Service Committee has defined terrorism in three easy pieces: 1) We good, they bad; 2) We normal, they crazy; and 3) We bad, they worse.

There is another definition of terrorism found in the broad language of the Patriot Act and other laws that bar refugees and asylum seekers from living and working in the United States if they were members of an armed group in their homelands. They’re considered to be terrorists or supporters of terrorists.

The national government can grant waivers but no effective program has been set up, although the Department of Homeland Security claims to have granted 10,500 waivers.

Army Lt. Colonel Dennis Chapman, who was the chief of a military transition team in the Kurdish region of Iraq, says rejecting someone who has proven to be a helpful ally of the United States “deprives the the word ‘terrorist’ of any meaning.”

According to Trevor Aronson, writing in the September/October 2011 issue of “Mother Jones,” counter-terrorism has become the FBI’s number one priority, consuming $3.3 billion of its budget, versus $2.6 billion for organized crime. The FBI now has a roster of 15,000 spies.

Except for the shoe bomber, the underpants bomber and the Times Square bomber, all of the high-profile domestic terror plots of the last decade were actually FBI stings. The FBI instigated the plots and then “sold” them to targeted individuals or groups. Those targeted would, almost certainly, not have done anything if not kicked in the ass by government agents.

One of the FBI’s favorite tactics was to have targeted individuals and groups recite a recorded oath to Al Qaeda and then make that one of the criminal charges. In the case of an impoverished group of men in Florida, who were eventually charged with a plot to blow up the Sears building in Chicago, having the men recite the Al Qaeda oath became a very involved process because the audio recording of it reveals that the men had no idea of the meaning and consequences of reciting the oath.

Muslims are the main targets of these sting operations, and, thus, the FBI feeds the paranoia about the dangerous nature of having Muslims living in a community.

The danger posed by those detained at Guantanamo Naval Base has long been in question due to the haphazard ways many of them wound up there. After reviewing 517 of Guantanamo detainee cases in depth, Seton Hall University law students and lawyers concluded that only eight percent were alleged to have been associated with Al Qaeda; 55 percent were alleged to have not been engaged in any hostile act against the U.S.; and the remainder were charged with dubious wrongdoing, including trying to flee from U.S. bombers. All but five percent had been captured by non-U.S. players, many of whom were bounty hunters.

On April 6, 2010, the New York Times reported that the Obama administration had approved the killing of Anwar al-Awlaki, a U.S. citizen who was living in Yemen. It is a violation of rule-of-law ideals for the president to use secret procedures and secret authorities to kill its own citizens.

In May 2011, the Obama administration authorized the firing of a missile from a Predator drone to kill Awlaki. That attempt failed but a missile fired in late-September 2011 hit its target, killing Awlaki and an untargeted U.S. citizen.

The process by which a U.S. citizen can be marked for death is murky, disputed and a perversion of due process, in any case. Under one description of the process, the Treasury Department designated Awlaki a “specially designated global terrorist” and thus it became illegal for an attorney to represent him without permission from the Treasury Department’s Office of Foreign Assets Control, a most unusual source for a denial of one of the U.S. citizen’s most basic rights.

A different scenario is offered for this great crime of a  targeted killing. Unspecified employees in the National Security Council (NSC) make the initial decision to kill someone. Higher-ups in the NSC approve the decision and then the president can approve the decision or turn it down.

Writing in “Salon,” Glen Grenwald says, “the most amazing aspect is that the U.S. public will stand and cheer the U.S. Government’s  new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.”

President Obama changed his position on military commissions because he said reforms put in had eliminated the commissions’ most objectionable features. Critics contend that the validity of military commissions will continue to be challenged due to relatively loose rules of evidence, absence of a civilian jury and restrictions on the ability to examine classified information used against defendents. The National Association of Criminal Defense Lawyers says the military commission system is “not about seeking justice as much as it is about obtaining convictions.”

Finally, instead of relying so heavily on military force in the War on Terrorism, a RAND corporate report issued in 2008 posits a more positive approach to dealing with terrorist groups. The RAND study found that terrorist groups are usually thwarted through political processes and effective law enforcement, not the use of military force.

V. Torture: Its Authorization, Practice and Legal Immunity (continued)

In July 2011, Prime Minister David Cameron of Great Britain announced the commission of a three-member panel to investigate CIA prisoner transfer policies to determine British complicity in the secret U.S. rendition program. Not too long before Cameron announced the investigation, the U.S. Justice Department reported that it would not prosecute CIA agents who carried out torture because they were relying on the August 2002 memo, which allowed virtually any coercive technique short of causing organ failure or death. It is the case, however, that training of CIA agents in methods of torture had started about eight months before the torture memo was issued, meaning that the CIA wanted legal cover for what it was preparing to do.

In the movie, “Philadelphia,” the lawyer played by Tom Hanks is seeking advice from the lawyer played by Denzel Washington. Hanks believes that his law firm is discriminating against him because he, Hanks, has AIDS. Washington says, “Explain it to me like I’m a fourth grader.” Instead of relying on highly strained legal reasoning to spare CIA interrogators from criminal charges, perhaps the Justice Department should have shown a fourth-grade class a video of “Enhanced Interrogation” methods in practice and then asked the class members if they felt the subjects were enduring torture.

The CIA had 92 videos of waterboarding being performed on two “high-value” targets: one boarded 83 times and the other 183 times. The 92 videos were destroyed by the CIA official involved, even though the destruction seemed to be a virtual open and shut case of obstruction of justice.

Jose Rodriquez, the CIA’s top clandestine officer, knew that the destruction of the waterboarding tapes would be “devastating to the CIA.”

In the case of Yoo and Bybee and their fourth-grade or lower level of reasoning, the Justice Department found only “poor judgment” and did not issue a sanction of any kind.

President Obama contends that he has prohibited the use of torture by the United States government. Yet that may be a lie, because the Associated Press broke a story in April 2011 in which both government officials and military sources confirmed that there are secret jails in Afghanistan. Detainees are usually held for 14 days but they can be held for up to nine weeks. The AP’s sources said there are 20 temporary sites in Afghanistan.

Obama criticized the old network of secret CIA prisons but human rights groups contend that harsh treatment bordering on inhumane is being carried out at these Afghanistan sites. Detainees have described being forced to strip naked and being kept in solitary confinement in cold, windowless cells, with the lights on 24 hours.

Bagram Air Force base in Afghanistan has long been reported to be a torture center but President Obama has been unwilling to discuss Bagram on “state secrets” grounds. According to Jeremy Scahill, who outed Blackwater’s dark secrets, there is a CIA detention center in the basement of a key Somali security facility.

Besides the reported presence of U.S.-run torture facilities in Afghanistan, the U.S. may be covering up Afghan-run torture chambers. A report released on October 10, 2011 by the United Nations Assistance Mission in Afghanistan, charges the Afghanistan intelligence agency and police force have been “systematically” torturing detainees, including children, at a number of jails. Interviews were conducted with 379 pre-trial detainees and convicted prisoners at 47 different facilities.

Systematic torture was found at five National Directorate of Security (NDS) facilities and multiple, credible allegations of torture at two others — 17 other facilities are still being investigated.

Beyond physical mistreatment, which included sexual humiliation, many prisoners also said they were held beyond the maximum duration allowed by law and denied family visits.

The head of the United Nations in Afghanistan, Steffen al-Mistura, denied that torture was institutional nor government policy and the Afghan government also rejected the claims.

The authorization to use torture continues to exist in U.S. law. As part of the legislation passed to allow the use of military commissions, a provision was included to allow the president to authorize the CIA to use interrogation methods, which, under the rubric of the Geneva Conventions, are defined as torture.

What Should Obama Do or Have Done

President Obama should press for the rewriting of the Military Commissions Act of 2006 to remove the provision giving the president the power to authorize torture. Besides removing any legal authorization for torture, Obama must vigorously investigate and close down any U.S.-run facility in which torture is being administered. Finally, if any branch of the Afghan government is employing torture for whatever reason, that would one more reason to pull U.S. troops out of Afghanistan.

V.Torture: Its Authorization, Practice and Legal Immunity

A legitimate question can be raised about why in a blog dedicated to finding a alternative to Barack Obama’s renomination should there be such an extensive treatment of torture, which was almost entirely practiced before Obama came into office. There are three reasons, at least, to cover the topic: 1) the widespread and horrible nature of the physical and psychological punishment administered to detainees makes manifest how awful a decision it was for the Obama administration not to prosecute any of those who authorized or carried out the torture; 2) there are good reasons to believe that President Obama has not ended either the legal basis nor the actual practice of torture; and 3) the use of torture is one of the most universally condemned crimes in the world, isolating the United States for its tolerance of it.

The key document providing legal cover for the widespread use of torture by U.S. interrogators was the infamous memo of August 1, 2002, written mostly by John Yoo and signed by Justice Department official, Jay S. Bybee. The memo redefined the crime of torture to make it all but impossible to commit.  The memo said that torture required the intent to inflict suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Mental suffering had to “result in significant psychological harm” and be of significant duration, e.g., lasting for months or years.

Meanwhile, in the White House, Vice President Cheney’s chief of staff, David Addington, was strongly proposing that the president, as commander-in-chief, had the authority to disregard virtually all previous known legal boundaries if national security demanded it. In addition, the White House’s chief legal counsel, Alberto Gonzalez, weighed in with a memo in which he characterized the Geneva Conventions as “quaint” and out-of-date.

The catalog of permitted damage to the human body and mind under “enhanced interrogation” is long and bone-chilling. An article in the August 26, 2009 Washington Post sets forth the CIA’s instructions for breaking a detainee’s will. “After removing the hood, the interrogator opens with a slap across the face — to get the detainee’s attention — followed by other slaps.” Next comes the head-slamming or “walling,” which can be tried once “to prove a point,” or repeated again and again. “Twenty or thirty times consecutively” is permissible.

The CIA Inspector General’s report released August 24, 2009 was excerpted in an August 25, 2009 Associated Press article: “The interrogators slapped prisoners, held a handgun to one’s head, used power drills to make threats and left even shackled and naked detainees in frigid cold until they cooperated.” A detainee was told his mother would be sexually attacked in front of him. A mock execution was even held.

A May 10, 2005 memo by Justice Department official, Ray Bradbury, describes nudity as designed to cause psychological discomfort; sleep deprivation may be scheduled, allowing the subject only two or three feet of movement; and abdominal slaps are O.K. if delivered with the back of an open hand.

Under CIA control a dozen detainees were sleep deprived for 48 hours and three for more than 96 hours. One detainee was kept awake for six days and was chained to the walls and floor of a cell. Sleep deprivation beyond 48 hours is known to produce hallucinations and makes the subject highly suggestible.

The State Department regularly lists sleep deprivation as a form of torture in its annual report on human rights abuses. Iran, Syria and Indonesia have been cited as using the practice.

Even in the Middle Ages, sleep deprivation was not practiced, because the illusions and delusions it caused were apt to produce false confessions, rather than real ones. In some ways, it seems, the ancients were more humane and wise than our modern society in the treatment of detainees.

Besides the serious physical and psychological damage inflicted on detainees, several of them have died in U.S.custody.

The next blog will began with an examination of international repercussions of the practice of torture by the United States.

Embracing Death as a Problem Solution

Republicans have long accused Democrats as being “soft on national security” and Republican politicians usually do very well against Democrats when people are polled on which political party will keep them safer. I believe that what gets labeled as “national security” actually contributes to our insecurity because resources devoted to the military, intelligence activities, building more nuclear weapons, and, more recently, homeland security, consume resources which could be used to build a better society; therefore, I have favored the Democratic approach of devoting more resources to domestic programs.

There is a relationship between the “soft on national security” label applied to Democratic politicians and the “soft on terrorism” label pinned on President Obama. Instead of confronting his label by building a case for how terrorism can best be countered by more effective law enforcement and using diplomacy as the preferred means of resolving international conflict, President Obama is using military force as the prime means of reducing a terrorist threat to the United States and to the world. Thus, Obama has quadrupled the use of drones as compared to George W. Bush and he has ordered the killing of far more “terrorists” thus far than did Bush during his two terms in office — almost a four-to-one ratio by one recent count.

Many Obama supporters have taken the argumentative approach that Obama’s kill-rate has trumped the “soft on terrorism” charge. The
prime exhibits is this argument are the killing of Osama bin Laden, the cleric Anwar al-Alwaki and Muammar al-Quaddafi.

I believe, as does Dennis Blair, former Director of National Intelligence, that the use of drone strikes probably creates more terrorists because the murdered man’s surviving family, friends and circle of associates want to get back at the United States to avenge the killing caused by the drone strike. Some analysts contend that killing older, less violence-prone leaders, sometimes brings younger, hotter blooded, more violence-prone men to take their places. Studies have shown, for example, that men between the ages 18 and 35 commit a disproportionately high percentage of all violent crimes.

Representative Ron Paul (R-TX) has been a rare voice of sanity in a frenzied climate in which everyone who our government says is a terrorist, is, ipso facto, a terrorist. Paul has said we don’t know who at Guantanamo Bay is a terrorist because none of the detainees have been adjudged such by a court of law. We also know that there have been many cases of mistaken identity in assigning detainees to Guantanamo and others have been fingered by someone trying to get even with a personal enemy or pointed out by bounty hunters. In Iraq, the International Red Cross concluded that up to 70 percent of the thousands being held by the U.S. military had not been charged with a specific crime.

The title of this blog is “Employing Death as a Problem Solution.” I have been distressed by the extent to which U.S. citizens see death as a solution to a problem, particularly in the War on Terrorism. At sporting events held shortly after 9/11, the national anthem was sung with unusual gusto, and the line which drew the most boisterous reaction was, “And the rockets’ red glare, the bombs bursting in air.” These sporting crowds wanted the people of Afghanistan to suffer severe retribution for harboring the perpetrators of 9/11.

After Osama bin Laden was killed there were loud chants of “USA! USA! USA!”, indulged in mostly by young men. When Brian Williams asked Texas Governor Rick Perry if he has ever lost any sleep due to the 234 condemned  inmates put to death during his tenure, right after Williams said the number of those executed, there was loud applause and cheering from the audience, very satisfied that Perry had presided over the deaths of so many.

When President Obama authorized the assassination of a U.S. citizen, Anwar al-Awlaki, he voided a constitutional protection that even the legal protection eraser of George W. Bush didn’t try to blot out. And the killing of another U.S. citizen in that missile strike against Alwaki was considered to be acceptable collateral damage.

The demise of Col. Qaddafi in Libya has brought a surge of support for his violent death as acceptable retribution for the many great crimes he committed against his own people and the citizens of other countries. Yet it is an inauspicious beginning for a people who want to form a government that is a polar opposite of Qaddafi, to savagely beat this former leader, firmly in their control, kill him, then celebrate the killing.

The administration of George W. Bush crossed constitutional and legal boundaries when it authorized torture; created a new category of criminal termed an “enemy combatant;” treated U.S. citizens, such as Padilla and Hamdi as “enemy combatants” with diminished legal rights; outed Valerie Plame, putting her CIA contacts under the threat of death; and wiretapped without a court order. As indicated in a prior blog, President Obama has adopted some of Bush II’s perversions of the law; however, even President Bush didn’t claim the right to kill a U.S. citizen based solely on the president’s say-so. Bush also put far fewer innocent civilians and misidentified “terrorists” at risk of serious injury and death by authorizing far fewer drone strikes than has President Obama.

As a measure of morality, many people in the world probably don’t see a significant difference between a government that kills innocents in targeted strikes to kill “terrorists” and non-state individuals and groups who kill innocents to achieve political objectives.

A recent media report described an intense debate going on in the White House as to whether or not those lower-level “foot soldiers” who carry out acts of violence formulated by their leaders, could be  targeted by U.S. air strikes or even U.S. operatives on the ground. That this debate has even been going on is troublesome, but if the side that wants to target lower-level “foot soldiers” wins out, there will be a great increase in the number of innocent civilians killed as collateral damage.

It is President Obama’s use of military force as the major means to try to eradicate terrorism which is another reason that there be a strong Democratic challenger to him in the primaries, or a favorite son approach be adopted to allow the nomination to go to someone with a much better vision for the nation.

IV. Civil Liberties: New Boss Just Like the Old Boss

Civil libertarians who believed that the ascension of Barack Obama to the presidency would bring a dramatic change from George W. Bush on civil liberties must be in the depths of despair over the degree to which President Obama echoes the positions of his immediate predecessor.

Law professor David Cole writes that President Obama has told the courts that lawsuits challenging warrantless wiretapping and extraordinary rendition must be dismissed because they involve “state secrets.” Obama has also adopted the Bush position on indefinite detention — a position that should be anathema to a former constitutional law instructor. The only difference in the positions of Bush and Obama is that Obama has put in place a periodic case-by-case review of those detained indefinitely.

David K. Shipler, writing in the September 19, 2011 the Nation, has concisely captured in one paragraph President Obama’s stance on civil liberties: “Data collection on individuals has flourished without judicial oversight. People under suspicion are still monitored clandestinely with Bush-era legal tools. State secrecy is invoked to thwart lawsuits by victims of government abuse. Leakers and whistleblowers are aggressively prosecuted and federal agencies vigorously resist inquires made under the Freedom of Information Act.”

Before 9/11, the government used a “targeted suspicion” model of surveillance: first comes the suspect, then comes the surveillance. After 9/11, the model as reversed, as the government claimed the authority to vacuum up information about everyone. This latter model prevails under President Obama.

In August 2007, candidate Obama issued a ringing denunciation of Bush II’s spying on U.S. citizens. Obama said, “No more national security letters to spy on citizens who are not suspected of a crime.” He added that that there are “no shortcuts to protecting America.”

National security letters (NSL) can now be issued by mid-level FBI officials on the slightest pretext, without judicial oversight, to demand records from libraries, Internet providers, financial institutions, telephone companies and others. Each NSL comes with a gag order warning the recipient to say nothing about it except to an attorney.

The Obama administration has made extensive use of NSLs, issuing some 50,000 annually, in part to compile lists of peoples’ email and phone contacts as a way of assembling mosaics of associations.

Far from creating a climate of openness and transparency in government — another Obama campaign promise — Obama has, if anything, made government more secretive and intrusive into the lives of its citizens. Steven Aftergood, senior research analyst at the Federation of American Scientists, claims we are seeing the “normalization and legitimization of a national surveillance state” in which two and one-half million people hold confidential, secret or top secret clearances.

Yale law professor Jack Belkin claims that the National Security Agency (NSA) has the capacity to intercept and download every six hours, electronic communications equivalent to the contents of the Library of Congress. Those whose memories go back a few years may recall when NSA analysts were intercepting calls between lovers and passing around the most salacious bits.

When I watched and listened to Obama officials testifying before a House committee taking testimony on the extension of sunset provisions of the Patriot Act, I was struck by the looks and words of frustration on and by the lawmakers as they tried to get the witnesses to explain Obama’s position on the extensions. The officials’ main response was that they would be more open in a closed door session. As it transpired, the Patriot Act provisions were extended without any significant changes.

With the extension of the Patriot Act, the FBI can continue to find out what books a terrorist suspect has checked out of a library. More importantly, a U.S. citizen can be denied the basic legal rights to face his/her accuser in a court of law and to know the nature of the legal charges against him/her. Even the roving wiretap, which has not been used in the past, was allowed to stand.

The Chicago Tribune did a study of wrongful convictions, spurred in large part by the large number of those on death row or serving life sentences, who were being released because of wrongful convictions — the number is at least 125 as of now. The Tribune could not find a single case in which a prosecutor had been successfully prosecuted for either withholding exculpatory evidence from defense attorneys or even manufacturing evidence to get a conviction. In light of what the Tribune found and the constantly growing number of the wrongfully convicted, it is reprehensible that the Department of Justice opposed a rule change that would have clarified prosecutors’ obligations to provide defense attorneys with information that indicated innocence or impeached the creditably of government witnesses.

Military Commissions Act of 2006

During the presidential campaign, Barack Obama was highly critical of military commissions. He believed that the federal court system was the proper venue for trying those accused of violations of federal law.

After becoming president, Obama and his close advisers concluded that some of the detainees at Guantanamo Bay be tried by military commissions; therefore, the Military Commissions Act of 2006 (MCA) was amended to restrict coerced and hearsay evidence and provide greater defense counsel resources. Although the amendment strengthened defendents’ rights and brought the MCA into closer alignment with the U.S. Constitution and statutory law, it didn’t fix more serious flaws in the MCA.

The ACLU’s Executive Director Anthony D. Romero has encapsulated in one long sentence the problems that a number of legal scholars and civil liberties groups see as major flaws in the MCA: “The president can now, with the approval of Congress, indefinitely hold people without charges, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas corpus.

There is a definite and compelling legal question whether or not the MCA restricts the habeas corpus rights of U.S. citizens, because the exclusion from the MCA’s habeas corpus provisions hinges on the single word “alien” and that word was left out of one the provisions.

Another strong criticism of the MCA is that it is a constitutionally-proscribed ex post facto law, by defining as crimes, acts which were not crimes when committed.

Contrary to President Obama’s contention that torture has been legally done away with, the MCA permits, at the president’s volition, the CIA to use torture as an interrogation tool. Senator Ted Kennedy’s (D-Mass.) amendment to outlaw specific interrogation techniques, including waterboarding, was defeated, as was an amendment sponsored by Arlen Spector and Patrick  Leahy to remove the habeas corpus language from the MCA. After caving on the use of federal courts to try “high-value” Guantanamo detainees, Attorney General Eric Holder’s continued argument that the federal courts are the best venues to try non-military personnel, sounds as forlorn and ineffectual as a whisper in a hurricane.

During the presidential campaign, Barack Obama addressed the issue of funding terrorist activities when he made a promise to protect the First Amendment rights of Muslim charities; however, Obama has done nothing to change the application of onerous financing laws. Defining “material support” as a terrorist activity, even if it results in no discernible violent activity, is a travesty of justice. Givers can be prosecuted as terrorists even if they have no idea where their contributions wind up.

What President Obama Should Have Done on Civil Liberties

That no one can be deprived of life, liberty or property without due process of law is a bedrock principle of legal jurisprudence in the United States. President Obama’s embrace of indefinite detention without a conviction in a trial opened a huge breach in this legal protection.

President Obama also supports extraordinary rendition and warrantless wiretapping. Obama should have thrown into the nearest ashcan these George W. Bush specialties. Obama even supports telecom immunity, by which telephone companies suffer no penalty for providing telephone records which the government can use in its war on terrorism.

When the Patriot Act sunset provisions came up for extension, the Obama administration should have vigorously opposed them. Ideally, President  Obama should have pressed for a rewrite of the Patriot Act focused on those aspects of law enforcement which have not kept pace with advancing technology.

The use of national security letters sidesteps the process of obtaining court warrants to conduct searches. Obama should have tried to end their use.

As a general matter, President Obama should have been the immovable object in reversing the drift of the U.S. toward a national surveillance state.

Finally, when amending the Military Commissions Act in 2009, the energies should have been directed toward elimination of the habeas corpus and authorization of torture provisions. An unconventional thought here is that by addressing what some legal scholars and civil liberties groups call ex post facto provisions of the MCA, President Obama may have been able to close Guantanamo Bay on the legal grounds that most if not  all of the detainees there are being held for acts which were not crimes when committed.