August 4, 2010

ACLU Civil Liberties Report


The ACLU has released a report on civil liberties under Obama as they relate to “national security” issues. The report gives a mixed verdict, concluding “that the administration has taken positive steps and made genuine progress in some areas”, but that:

Regrettably, in a pattern that has repeated itself throughout the administration’s first eighteen months, a significant achievement was followed by a step back: the administration reversed its decision to comply with a court decision ordering the release of photos depicting the abuse of prisoners in Iraq and Afghanistan, and it supported legislation granting the Secretary of Defense unprecedented authority to conceal evidence
of misconduct.(p.2)

Actually the report doesn’t support this “some good, some bad” conclusion. Rather, it depicts the administration as having started out well but then having taken nothing but “steps back” since then.

On January 22, 2009—his second full day in office —President Obama signed a series of executive orders that squarely repudiated some of the most egregious abuses of the Bush administration. The new orders categorically prohibited torture and limited all interrogations, including those conducted by the CIA, to techniques authorized by the Army Field Manual. They outlawed the CIA’s practice of secret detention and shut down the CIA’s overseas prisons. And they mandated the closure of the Guantánamo prison within one year. These auspicious first steps towards fulfilling candidate Obama’s promise of change were more than symbolic gestures: they carried the force of law, they placed the power and prestige of the presidency behind restoration of the rule of law, and they gave weight to the President’s oft-stated view that adherence to our nation’s fundamental principles makes us safer, not less safe.

There’s the good words at the outset, and indeed, since I can’t imagine why Obama would have signed those orders at all if he meant to trample their spirit later on, I guess here’s one place where I can believe he started out meaning well. But that doesn’t make any difference. Nobody should care about good intentions even where they do fleetingly exist, if one has the power to follow through but refuses to do so. As the report details, Obama not only hasn’t followed through, he’s flipped to a reactionary position, as he seeks to entrench and normalize Bush policy across the board.
(The report itself admits that its anodyne conclusion is more of a political olive branch than a firm belief:

The ACLU will continue to monitor the impact of the administration’s national security policies on fundamental civil liberties and human rights. We hope that this report, published less than halfway
through the President’s first term, will serve as a vehicle for reflection and further dialogue; we hope that the administration will renew its commitment to the principle that the nation’s fundamental values are the very foundation of its strength and security.


The report is divided into seven subjects.
1. Transparency:
In seeming accord with his campaign promises, Obama started out ordering all federal agencies to maintain a “presumption in favor of disclosure”. This seemed to directly reverse the “Ashcroft Rule” which demanded a presumption of secrecy. There were some lesser cosmetic improvements.
The most important action was the release of the Bush torture memos.
But “the administration’s commitment to transparency has been inconsistent, and it has waned over time.”  Obama continues to flout court orders to release torture photos from Iraq and Afghanistan.

Since its change of heart on the abuse photographs, the administration has fought to keep secret hundreds of records relating to the Bush administration’s rendition, detention, and interrogation policies. To take just a few of many possible examples, it has fought to keep secret a directive in which President Bush authorized the CIA to establish secret prisons overseas; the Combatant Status Review Transcripts in which former CIA prisoners describe the abuse they suffered in the CIA’s secret prisons; records relating to the CIA’s destruction of videotapes that depicted some prisoners being waterboarded; and cables containing communications between the CIA’s secret prisons and officials at CIA headquarters. It has argued that the CIA’s authority to withhold information concerning “intelligence sources and methods” extends even to methods that are illegal. The administration has also fought to withhold information about prisoners held at Bagram Air Base in Afghanistan. Indeed, the Obama administration has released less information about prisoners held at Bagram Air Base than the Bush administration released about prisoners held at Guantánamo.

Although the existence of Obama’s illegal and unconstitutional assassination program has been publicized and acknowledged, he refuses to release any details. Meanwhile, even as he refuses to investigate Bush-era crimes (for the obvious reason that he and his thugs are committing the same crimes), Obama, contradicting another campaign promise, has been aggressively pursuing and indicting whistleblowers. Thomas Drake and Bradley Manning are the two most prominent citizen activists who are being persecuted by the man who during his campaign promised to “make sure those folks [whistleblowers] get protection.”
I guess like so many other things he said, that statement had an Orwellian connotation as well.
2. Torture and Accountability:
Here’s where Obama’s initial declarations were at their best. He released the torture memos and ordered that all prisoners be afforded the protections of the Geneva Convention. He ordered the close of secret CIA dungeons and Red Cross notification regarding all prisoners.
But unlike most other countries involved in the torture crimes – the UK, Germany, Canada, and Spain – this administration has curtly rejected all calls for accountability for these crimes under Bush.

The truth is that the Obama administration has gradually become an obstacle to accountability for torture. It is not simply that, as discussed above, the administration has fought to keep secret some of the documents that would allow the public to better understand how the torture program was conceived, developed, and implemented. It has also sought to extinguish lawsuits brought by torture survivors—denying them recognition as victims, compensation for their injuries, and even the opportunity to present their cases.
(p. 8 )

Obama has thrown up a welter of pseudo-legal barricades to legal accountability which would make Bush envious. He has sought to expand the noxious “state secrets doctrine” (Mohammed vs. Jeppesen Dataplan), lied about the law (Rasul vs. Rumsfeld), invented Kafkaesque conundrums and pseudo-federalistic mumbo-jumbo (Arar vs. Ashcroft), all in order to keep the cases out of the courts completely. (Never mind that this is exactly the situation the federal courts are for according to arch-federalist Hamilton himself.)
Another Catch-22 has been the administration’s bogus arguments that civil suits aren’t necessary because the Justice Department’s own investigations are sufficient. This is a twofold lie: first, the DoJ, even if it were undertaking good faith investigations, represents the community, not the victim himself; and second, it’s a lie that any such investigations are taking place anyway.
All the DoJ has done is announce a lame “preliminary review”, which they explicitly proclaimed a priori will seek to establish only the “abuses” committed by bad apples. They ideologically ruled out of consideration any indictment of systemic, top-down policy. (This is a standard corporate liberal trick, one of many places they join hands with the real fascists. As detailed in Naomi Klein’s Shock Doctrine, everyone from Amnesty International to the South African Reconciliation Commission has agreed to go along with the bad apple Big Lie wherever the real torturer was the neoliberal power structure.)
Of course throughout Obama’s notorious watchword has been “look forward, not back.” The slogan of criminals down through history. As the report says,

In fact the choice between “looking forward” and “looking back” is a false one. While it’s crucial that the Obama administration adopt new policies for the future, we cannot ignore the abuses of the past. And while President Obama has disavowed torture, a strong democracy rests not on the goodwill of its leaders but on the impartial enforcement of the laws. Sanctioning impunity for government officials who authorized torture
sends a problematic message to the world, invites abuses by future administrations, and further undermines the rule of law that is the basis of any democracy.
(p. 9)

“The impartial enforcement of the laws” is in fact precisely what Obama, his supporters, the MSM, and the establishment in general do not want. Where it comes to Obama hacks, we’ve seen plenty of examples (Krugman defending Obama on the Gruber flap; Sunstein advocating illegal subversion of Internet democracy) of how, as long as the Democrats are in power, we shouldn’t have the rule of law or the rule of principle or the rule of anything other than our faith in their benevolence. (Of course, Republicans are the same way with their own criminals.)
(Of course I don’t assume that torture has actually ended or that the dungeons have all been closed. Obama says lots of things he doesn’t do.)
3. Detention:
During the campaign Obama promised to close Gitmo. Coming into office he set a one year deadline for that goal and ordered the secret CIA prisons closed.
Since then he has flouted his own deadline, pretending that trumped up Congressional resistance is stopping him. (Before I became convinced that Obama is secretly a Republican in his mind, this was another of my examples of what I thought was his basic political incompetence and how he can’t get the spoils system right. I asked, There’s no federal prison in a safely Republican district where he can dump these prisoners?)
He has consistently resisted judicial review of the status of prisoners, achieving a hideous “supreme” court ruling against habeas corpus, one of the most basic indivisible elements of the Constitution. (The juxtaposition of this anti-constitutional and anti-human ruling with the Citizens United decision a few weeks later is perhaps the most stark proof that America no longer has a constitutional judiciary, but a rogue, hijacked structure which has abdicated all sovereignty. This is definitely true at least of the SCOTUS.)
The basic position is hostile to the rule of law; the administration will review or not and keep or release prisoners at its pleasure, but they deny any law or constitution compels them to. In May 2009 Obama went farther than Bush ever did, proclaiming in principle that the government has the right to detain anyone it defines as a terrorist indefinitely, without trial, no matter where and under what circumstances the suspect was grabbed. The government of course has no such right, no such authority, no such prerogative. This is a stark declaration of lawlessness, of anti-constitutional contempt, of autocratic tyranny.
And what if Obama ever did decide to close Gitmo after all? He’s already covered himself, simply setting up Bagram as the same thing Gitmo used to be. So Gitmo has already been cloned, and closing the one would no longer make any substantive difference. It would be a political fraud. “What I give with one hand I take away with the other.”

Finally, the Obama administration has advocated for the transfer of some Guantánamo prisoners to a prison in Thomson, Illinois, where they would be detained by the military without charge or trial. The ACLU will continue to oppose this effort to transfer the Guantánamo detention regime to the heartland of America; we fear that if a precedent is established that terrorism suspects can be held without trial within the United States, this administration and future administrations will be tempted to bypass routinely the constitutional restraints of the criminal justice system in favor of indefinite military detention. This is a danger that far exceeds the disappointment of seeing the Guantánamo prison stay open past the one-year deadline. To be sure, Guantánamo should be closed, but not at the cost of enshrining the principle of indefinite detention in a global war without end.
(p. 12)

This is perhaps the most ominous part of it. We already see all the worst depredations of neoliberal economic and paramilitary assaults coming home to us. The totalitarians would love to bring this kind of prison regime to the home soil. That would be quite a precedent. We must oppose all new terror war prisons everywhere, but especially on home soil. If shutting down Gitmo would mean simply moving the spirit of Gitmo stateside, then it’s much better to physically leave Gitmo where it is.
Closing Gitmo is not primarily a physical concept, it’s a legal, political, and moral concept. Bagram already means Gitmo won’t close, and a domestic Gitmo will be even worse.
4. Assassination:
This is a radical extension of Bush policy. Here there’s no doubt at all that Obama’s actions are illegal by international law and unconstitutional at least as applied to US citizens. We know of at least one citizen targeted for death, and the administration has hinted that there are more.
5. Military Commissions:
Candidate Obama rejected the Military Commissions Act and proclaimed his “faith in America’s courts”.
Here there was no initial promising action as a way station between the promise and its betrayal – president Obama moved without transition to actively seeking to enshrine the commissions. While Obama hacks and cultists mysteriously claim he can’t influence Congress where it comes to public interest legislation, he had no problem at all aggressively pushing for legislation clarifying and entrenching military commission power.
These kangaroo courts flout every American principle of justice, from allowing “evidence” extracted under torture* to refusing the defendant’s right to confront witnesses against him. I don’t know if they display the Ten Commandments in these dank little anti-judicial pits, but they sure must not display the Bill of Rights.
(*Maimonides thought even voluntary confessions shouldn’t be admissible in criminal trials, as even that ran too much of a risk of violating of the defendant’s soul. Oh well…)
6. Speech and Surveillance:

With limited exceptions, the Obama administration’s positions on national security issues relating
to speech and surveillance have mirrored those taken by the Bush administration in its second term.
(p. 16)

Early in the campaign Obama spoke out against Bush’s wiretapping crimes. Here he didn’t wait until after the election to betray what he said, voting for telecom immunity and other pernicious features of the FISA Amendments Act.
Since taking office the administration has argued that the FISA act, like everything else related to alleged “national security”, should be beyond judicial review. As many of us predicted from very early in the Bush years, a Democrat in office has embraced all the Bush surveillance and search arrogations and sought to extend and normalize them. Obama has pushed for the intensification of the Patriot Act’s assaults on freedom.
Obama also collaborated with the SCOTUS to shred the 1st Amendment with their “material support” doctrine, which declares in principle that anything the government declares is communication which “supports terrorism” is beyond the bounds of free speech. Needless to say, anything you want can be so defined. I’ve always said and believed SUV commercials support terrorism. That’s just one example. Is conspiracy to attack the currency a terrorist act? If Al-Qaida did it, it would be. So that means when Wall Street does it, it is. So according to Obama and the supreme court themselves, defending the big banks is providing material support to terrorism and is not legitimate free speech. I guess I’ll take their word for it on that one….
7. Watch Lists:
Letting dubious characters slip through while wrongly flagging hundreds, perhaps thousands of innocent people, the no-fly list has been an ongoing embarrassment for the government and a major problem for those wrongly listed. The administration is unrepentant. It refuses accountability, refuses to divulge its methods for listing, refuses to institute a procedure for the redress of wrongs and delisting of the innocent.
Obama has sought to expand the list regime while rejecting even the slightest semblance of due process. A low level police state hack chirped, “the entire federal government is leaning very far forward on putting people on lists.” (p.18)
While the ACLU doesn’t go so far in this publication, it sounds to me like the watch list is more of an exercise in police statism for its own sake than anything meant to actually have utility or to function rationalistically. From that point of view, a chronic process of “erroneously” victimizing the innocent is a feature of state terror, not a bug.
The government has also extended privateering and constitution-shredding tactics from the “drug war” to the “war on terror”, arrogating the power to seize the assets of charities on alleged suspicion of terrorist connections. Needless to say, here too there’s no transparency regarding the procedure of suspicion or the evidence in any particular case, and the administration claims that these as well must lie beyond the reach of the courts.
So just as with the watch list, here’s strong evidence that, as many of us have argued for years, the point of the drug war was to pioneer totalitarian tactics to be more broadly applied as soon as the pretext was available. 9/11 provided that pretext.
So here’s my basic summary.
This report demonstrates Obama’s contempt for the rule of law and democracy (p.10). Rather, at every turn he has the attitude of a despot. He and his hacks (and the media) want the cult of personality over the rule of law (p.9). Taking off where Bush left off he has developed a veritable ideology of detention, which is bot ha pseudo-principle and a weapon to assail all true American principles (p.11).
He has systematically sought to set up Kafkaesque catch-22s: Gutting the FOIA as he nominally expands it (p.5); winding down Gitmo while revving up Bagram (11), using the typical antidemocratic “standing” ploy against accountability in the courts, e.g. where it comes to FISA (16); keeping the watch list in the darkest closet of culpable secrecy (18).
He has perverted federalism with his attacks on judicial oversight (pages 9, 11, 16, and other examples). He has denied that there was ever a system problem under Bush, but rather continued to propagate the Bush Big Lie that incidents like Abu Ghraib were the “abuses” of “abd apples”, when all torture and atrocities were in fact the result of systematic top down policy.
This paper also enumerates several major Obama campaign lies: The promise of transparency as a value and a practice (p. 4); encouragement of whistleblowers (6); that he’s close Gitmo (in spirit as well as physically) and end detention without trial (10); that he opposed military commissions.
The result is a devastating condemnation of Obama as an enemy of American values and a traitor to the mandate of his election. It establishes that he briefly may have intended to roll back some aspects of the Bush assault on civil liberties, but quickly changed his mind. Since then he has continued the Bush assault on a broad front. So we cannot endorse this from the ACLU’s conclusion:

There can be no doubt that the Obama administration inherited a legal and moral morass, and that in important respects it has endeavored to restore the nation’s historic commitment to the rule of law. But if the Obama administration does not effect a fundamental break with the Bush administration’s policies on detention, accountability, and other issues, but instead creates a lasting legal architecture in support of those policies, then it will have ratified, rather than rejected, the dangerous notion that America is in a permanent state of emergency and that core liberties must be surrendered forever.(p.20)

Obama has clearly endeavored to do the opposite. The most he did was fake in one direction for a few weeks and then reverse course. And the “inheritance” meme, so beloved of Obama’s desperate hacks and cultists, is beneath contempt. (Something doesn’t count as a bad inheritance if you have the power to disavow and reject it but instead seize full ownership of it with great gusto. In that case it’s not your “inheritance”, but something you morally own going back to its inception. That applies to Obama/Bush’s Second Great Depression, Obama/Bush’s Bailout, Obama/Bush’s war, Obama/Bush’s offshore drilling, and it applies to Obama/Bush’s assault on civil liberties.)
So what is to be done? I’m not sure. Along with net neutrality, civil liberties is an issue where we do seem to need “reform within the system”. (Although the problem’s not quite as bad. The Internet democracy is far more vulnerable and requires positive reform action by the government for its preservation, while however degraded the civil liberties regime becomes in principle, the government would still have to actively assault us to make good on its threats, and we have many other routes of resistance besides system reform. Nevertheless, the problem is critical.)
I suppose at this point my prescription would be that, to whatever extent we do still try to seek reform within the system (which I normally think is pointless and argue against), we should focus on these two issues.

1 Comment

  1. For more information about Thomas Drake, visit the Save Tom Drake facebook page:


    You can also follow Thomas Drake on twitter @savetomdrake –


    Comment by savetomdrake — August 4, 2010 @ 7:36 am

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