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Monday, Jul 11, 2011, 5:04 am

Civil Liberties Abuses in the Age of Obama

By David Szydloski

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On July 1, blogger and constitutional law expert Glenn Greenwald delivered a talk at the Socialism 2011 Conference in Chicago called "Civil Liberties Under Obama." I have summarized his talk below as well as added links to some of his previous writings on the same subjects and other articles he referenced in his talk.

Greenwald began by pointing out that only a year ago, many self-described progressives would have strongly disagreed with the idea that Obama, a constitutional law expert who campaigned against many of Bush’s civil liberties abuses, was continuing those abuses. But that is no longer the case. While a minority of Obama supporters have criticized the president, more have either kept silent or actively defended Obama’s actions. Meanwhile, many on the right have acknowledged—and even commended—Obama’s actions including Jack Goldsmith, law professor who worked in Bush’s Office of Legal Counsel, General Michael Hayden, former Director of the CIA (2006-2009) and even Dick Cheney.

Greenwald highlights four areas where Obama has continued—or exceeded—George W. Bush’s abuse of civil liberties in pursuit of foreign policy and/or national security objectives:

1) Indefinite detention: One of Obama’s campaign promises was that he was going to to close the Guantanamo Bay detention facility, which has not happened, and likely will not happen while Obama is in office. Some administration officials offer the defense that Congress has passed several laws on this issue which Obama cannot circumvent, but the fact of the matter is that Obama’s original plan to close the prison was to simply move it to American soil, thus maintaining the policies and practices of Guantanamo prison on the mainland.

This was clear when Obama revealed, in 2009, that he believed that some detainees “may have to be held without trial indefinitely.” In comparison, Bush never openly made any such statement, even though his preferred methods of military courts for detainees only paid lip-service to due process. Meanwhile, Obama’s program has been supported by many “liberals,” including the editorial page of the New York Times , which insisted that “indefinite detention” was necessary because many of the detainees, if tried, would have to be released because of lack of evidence and/or the torture they received because of Bush Administration's policies. (Meanwhile, the Obama Administration has no problem attacking indefinite detention when it is used elsewhere in the world.)

2) Habeas corpus: In 2008 the Supreme Court of the United States found, in Boumediene v. Bush, that prisoners in Guantanamo Bay had the right to habeas corpus and that the 2006 Military Commissions Act unconstitutionally suspended that right. After that decision, 82 prisoners had habeas hearings and 53 won their cases. These numbers are even more impressive when you consider that habeas hearings have a higher evidentiary standard than civil jury trials as winning a habeas hearing means that the court finds there is “zero credible evidence to justify” the incarceration.

But the Obama administration has gotten around the Boumediene decision by successfully arguing in federal court that, while prisoners might have habeas rights in Guantanamo, they do not have them at other facilities. Thus, new prisoners can be (indefinitely) detained at other American (or allied) facilities in Iraq or Afghanistan.

3) State secrets doctrine: The Obama administration has continued the Bush administration's controversial interpretation of the “State Secrets Doctrine.” Originally it was seen to have a limited application of keeping certain documents from being revealed in litigation, even if they were relevant to that litigation.

Under Bush, it was interpreted to allow the executive to keep anything associated with a particular topic from being revealed in litigation. Simply put, “it literally removes the president from the rule of law.” The doctrine has already been invoked by Obama to protect his administration's assertion that the U.S. has the right and power to target American citizens for assassination, such as the American-born Muslim cleric Anwar Awlaki.

4) War on whistleblowers: The Obama administration, despite campaign promises for a more transparent government, has aggressively pursued whistleblowers such as Thomas A. Drake, a NSA employee who was critical of what he saw as unnecessary government waste and, after several attempts to address the problem internally, reached out to a Baltimore Sun reporter. The 2010 release of classified video of a July 2007 airstrike, which killed two Reuters reporters, by Wikileaks sent the whole process into overdrive.

Greenwald argues that the increased crackdown on whistleblowers goes hand-in-hand with the veil of secrecy the "State Secrets Doctrine" extends over the workings of the Obama administration. Together the programs display a concerted effort by the executive to control the information flow out of the White House and sensitive government agencies, like the CIA—even if the release of that information would be in the best interest of the public.

Greenwald asserts that each of the four areas mentioned above have become de facto Beltway consensus and, without Republicans and Democrats arguing about them in public, the issues are nearly invisible in our political discourse. This bipartisan acceptance is even true for rank-and-file party supporters and political activists. Many Democrats who criticized Bush’s attacks on civil liberties have simply not raised similar concerns about Obama’s programs. Just the same, if these civil liberties violations have been criticized by Tea Party groups—and I’m not sure if they have—they haven't been given anywhere near the attention devoted to cutting taxes and slashing budgets.

This bipartisan acceptance is also a result of Democrats internalizing the familiar Republican attack that they are soft on national security and foreign policy issues. The result is overcompensation. Just look at the 2007 Democratic Presidential primaries which brought us Hillary Clinton’s “red phone” campaign ad and candidate Obama’s promise that he would not hesitate to act on any intelligence that Osama bin Laden was in Pakistan, even if that meant violating the sovereignty of our ally. (I guess he followed through on that campaign promise.)

Greenwald ended his talk on a hopeful note. He recognized the energy of the group he was speaking to and others he has met around the country. Change, however, is not going to come down from the top—it has to be demanded first by the public. Despair and resignation are all too common ruts for the left to fall into.
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