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How Obama Became a Civil Libertarian's Nightmare

Obama has expanded and fortified many of the Bush administration's worst policies.

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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.