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.

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