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 Obama has echoed 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.” President 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 Shipler, writing in the September 19, 2011 the Nation magazine, 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 inquiries 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 was 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 President George W. Bush’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 there are “no shortcuts to protecting Americans.”

The national security letter (NSL) can now be issued by midlevel 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 association. 

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

Yale law professor Jack Balkin claims that the National Security Agency 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 at least 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 testify before a House committee taking testimony on the extension of sunsetting provisions of the Patriot Act, I was struck by the looks and words of frustation on and by the lawmakers, as they tried to get the witnesses to explain Obama’s position on the extension. 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 substantial changes.

With the extension of the Patriot Act, the FBI can continue to find out what books a targeted suspect has checked out of a library. More importantly, U.S. citizens can still be denied the right to face their accusers in a court of law and to know the nature of the charges against them. Even the roving wiretap, which has not been used in practice, was allowed to stand.

In a prior blog on the surging growth of the U.S. prison population, a section was devoted to wrongful convictions. The Chicago Tribune did a study of wrongful convictions, spurred in large part by the large number of those on Death Row, or serving long sentences, who were being released through discovery that they had been wrongfully convicted. The Tribune could not find a single case in which a prosecutor had been successfuly prosecuted, despite the Tribune’s finding of many cases in which prosecutors had either withheld exculpatory evidence from defense attorneys, or even manufactured evidence to get convictions. In light of what the Tribune discovered, it is reprehensible that the Justice Department, under Obama, opposed a rule change that would have clarified prosecutors’ obligations to provide defense attorneys with information that indicates innocence or impeaches the creditability of government witnesses. 

             The 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, including terrorism charges.

After becoming president, Obama and his close advisers concluded that some of the detainees at Guantanamo Bay should be tried by military commissions; therefore, the Military Commissions Act of 2006 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 jwith constitutional and statutory law, it didn’t fix more serious flaws in the existing law. 

The ACLU’s Executive Director Anthony D. Romero has encapulated 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 petitions.”

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

Another strong criticism of the MCA is that it is a constitutionally-proscribed ex post facto law, by defining as crimes, acts that 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, to allow the CIA to use torture as an interrogation tool. Senator Ted Kennedy’s 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 in on the use of the federal courts to try “high-value” Guantanamo detainees, Attorney General Eric Holder’s continued arguments that the federal courts are the best place to try non-military personnel, sounds as forlorn and ineffectual as a whisper in a hurricane.

Turning to another terrorist activity-related promise that Obama made in the campaign, on the issue of funding terrorist activity, he promised 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 action, is a  travestry of justice. Givers can be prosecuted as  terrorists, even if they have no idea where their contributions wind up.

               What, Then, Should Have Been Done?

Given that no one can be deprived of life, liberty or property without due process of law, Obama should have thrown into the trashcan the civil liberties legacy from the preceding Bush administration: indefinite detention, extraordinary rendition, warrantless wiretapping,telecom immunity, and the concept of “enemy combatant.” He should have opposed the extension of sunsetting provisions of the Patriot Act and used his veto, if necessary. Ideally, Obama should have pressed for a rewrite of the Patriot Act to focus on those aspects of law enforcement that have not kept pace with advancing technology.

When amending the Military Commissions Act of 2006, Obama should have insisted on the removal of the restrictive habeas corpus provisions and the provisions authorizing the president to permit the CIA to use torture in interrogations.

As a general matter, President Obama should have tried to reverse the drift of the United States toward a national surveillance state.


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