How Obama Became a Civil Libertarian's Nightmare
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When Barack Obama took office, he was the civil liberties communities’ great hope. Obama, a former constitutional law professor, pledged to shutter the military prison at Guantanamo Bay, Cuba, and run a transparent and open government. But he has become a civil libertarian’s nightmare: a supposedly liberal president who instead has expanded and fortified many of the Bush administration’s worst policies, lending bipartisan support for a more intrusive and authoritarian federal government.
It started with the 9/11 attacks. Within a week, Congress, including many liberals, gave the White House blanket authority to wage a war on the terrorists. A month after that, Congress passed the USA Patriot Act, authorizing many anti-terrorism measure including expanded surveillance. By mid-November, the White House ordered creation of military tribunals to try terrorists who were not U.S. citizens.
Bush quickly expanded covert operations, creating a shadow arrest, interrogation and detention system based at Guantanamo that violated international law and evaded domestic oversight. While the Supreme Court eventually ruled that detainees have some rights, the precedent that the Constitution does not restrict how a president conducts an endless war against a stateless enemy was firmly planted. In response, groups like the American Civil Liberties Union proposed reforms the newly elected president could make. What few anticipated was how he would embrace, expand and institutionalize many of Bush’s war on terror excesses.
President Obama now has power that Bush never had. Foremost is he can (and has) order the killing of U.S. citizens abroad who are deemed terrorists. Like Bush, he has asked the Justice Department to draft secret memos authorizing his actions without going before a federal court or disclosing them. Obama has continued indefinite detentions at Gitmo, but also brought the policy ashore by signing the National Defense Authorization Act of 2012, which authorizes the military to arrest and indefinitely detain anyone suspected of assisting terrorists, even citizens. That policy, codifying how the Bush treated Jose Padilla, a citizen who was arrested in a bomb plot after landing at a Chicago airport in 2002 and was transferred from civil to military custody, upends the 1878’s Posse Comitatus Act’s ban on domestic military deployment.
Meanwhile, more than a decade after the 9/11 attacks, Washington’s wartime posture has trickled down into many areas of domestic activity—even as some foreign policy experts say the world is a much safer place than it was 20 years ago, as measured by the growth in free-market economies and democratic governments. Domestic law enforcement has been militarized—as most visibly seen by the tactics used against the Occupy protests and also against suspected illegal immigrants, who are treated with brute force and have limited access to judicial review before being deported.
One of Bush’s biggest civil liberties breaches, spying on virtually all Americans via their telecommunications starting in 2003, also has been expanded. Congress authorized the effort in 2006. Two years later, it granted legal immunity to the telecom firms helping Bush—a bill Obama voted for. The National Security Agency is now building its largest data processing center ever, which Wired.com’s James Bamforth reports will go beyond the public Internet to grab data but also reach password-protected networks. The federal government continues to require that computer makers and big Web sites provide access for domestic surveillance purposes. More crucially, the NSA is increasingly relying on private firms to mine data, because, unlike the government, it does not need a search warrant. The Constitution only limits the government searches and seizures.
The government’s endless wartime footing is also seen in its war on whistleblowers. Obama has continued cases brought by Bush, such as going after the "leaker" in the warrantless wiretapping story broken by the New York Times in 2005, as well as the WikiLeaks case, prosecution of Bradley Manning, and others for allegedly mishandling classified materials related to the war on terrorism. Its suppression of war-related information given to journalists extends overseas, where the State Department this month has blocked a visa for a Pakistani critic from speaking in the U.S. The White House also recently pressured Yemen’s leader to jail the reporter who exposed U.S. drone strikes. Meanwhile, the administration has stonewalled Freedom of Information Act requests, particularly the Justice Department, which has issued the secret wartime memos.