Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

January 25, 2013

Will Obama the Constitutional Lawyer Please Stand Up?

By David K. Shipler
     Published in The Nation, issue of Feb. 11, 2013
There’s something about Barack Obama that induces
Americans to imagine what they cannot see. The right
envisions a vile socialist, while many on the left picture
an inspired liberal, politically restrained in his first term
but now free to pursue his true beliefs.
No hard evidence exists to sustain either view. Obama
behaves like a centrist who leans tentatively left on certain
social programs but boldly right on military force and civil
liberties. His supporters, who have watched him duplicate and
codify some of the Bush administration’s most damaging civil
liberties violations, are now reduced to wishful thinking that an
authentic Obama will soon step forward and return the country
to the constitutional footing that was abandoned after 9/11.
After all, this reasoning goes, he taught constitutional law
at the University of Chicago, a credential he used to denounce
Bush at a 2007 fundraiser: “I was a constitutional law professor,”
he was quoted as saying, “which means unlike the current
president I actually respect the Constitution.”
Let us suppose that this respect for the Constitution, latent
during Obama’s first term, can be revived during his second.
In that fanciful spirit, it is easy to compile a wish list of actions
he might take, either by using his executive authority alone or
by campaigning hard for Congress to reconsider portions of
the Patriot Act, the amended Foreign Intelligence Surveillance
Act, the use of military commissions and other measures. Since
his re-election, however, he has done the opposite. In late
December, he signed a five-year extension of FISA’s broadened
surveillance powers without endorsing even the weakest requirements,
which were voted down in the Senate, to keep Congress
informed of rulings by the secret FISA court, and to report
whether domestic communications had been intercepted.
The trouble is the country’s state of mind. Giving up
invasive counterterrorism tools still seems risky, and Obama’s
interest in risk-taking lies elsewhere. In civil liberties, he does
not try to shape the popular mood; instead, he succumbs to it.
“I think what the president should be supporting,” said Susan
Herman, president of the American Civil Liberties Union, “is
the idea that it is now time to take an empirical look” at the
extraordinary measures taken in the wake of 9/11, to appraise
their dollar costs and effectiveness, “instead of just assuming
by inertia that we should just be doing the same thing.” Early
assumptions have proved misguided, Herman believes: hunting
down charities with alleged ties to terrorism in order to disrupt
the flow of funds has had little impact, for example, and the vast,
expensive surveillance mechanism has been counterproductive,
leaving intelligence analysts “drowning in data.”
So at a cash-conscious moment in Washington, Herman
makes a canny fiscal argument to question “the entire apparatus
under the Patriot Act,” which is so secretive that “we don’t
really know if we’re spending money in the right place.”
Even if a second-term Obama were inclined to work his
way through an ambitious labyrinth of reforms, he might be
impeded by the slow pace of history. In past episodes, the
country has taken time to recover its balance after a spasm of
fear. Only with the perceived threat gone and the egregious
acts exposed have courts ruled wisely and Americans looked
back with shame on what they’d done. Judging by earlier deviations
from constitutional protections in the name of national
security, the conditions may not yet be ripe for the post-9/11
“war on terror” to release its grip on the Constitution.
Five previous eras are instructive. The first four concluded
following their respective wars: the political prosecutions
under the 1798 Alien and Sedition Acts during the virtual
war with France; the suspension of habeas corpus in the
Civil War; the use of the Espionage Act of 1917 and the
Sedition Act of 1918 to persecute dissenters during World War
I; and the internment of ethnic Japanese citizens during World
War II. It was only after the sense of danger had ended that the
judicial and legislative branches stood taller.
But will the danger of terrorism end—and if so, how?
Certainly not with a clear victory or a treaty. In other countries
at other times, it has faded gradually as the circumstances
have shifted. And here, now? Perhaps if terrorism slowly
declines, Americans will eventually notice its absence, and an
evolving sensation of security will open the country to a reassessment
of the post-9/11 measures. That was the pattern of
the first four historical deviations.
The lesson of the fifth episode is slightly different, and
possibly more relevant. During the Cold War, from the 1950s
into the ’70s, the government’s feverish surveillance and nasty
tricks against peace groups and civil rights leaders were not
brought to an end until they were publicly disclosed as excessive
and illegal. It was not a sense of safety but of shock that
moved the country—shock that the FBI had tried to blackmail
Martin Luther King Jr. into committing suicide, had sent
Black Panthers’ wives fabricated letters from nonexistent mistresses,
had planted rumors to foment violence between street
gangs and the Panthers, had been assisted by the CIA, the
IRS and military intelligence to monitor and intimidate political
dissidents. The misdeeds, documented by Senator Frank
Church’s bipartisan committee, prompted real action: privacy
laws and regulations aimed at shutting down politically motivated
domestic surveillance. Many of those measures—most
notably FISA in 1978—were then shot full of holes by the
Patriot Act and other legislation following 9/11.
Looking at this history, it is reasonable to think that the
current era of abuse will not end without a blend of relative
safety, public outrage and dispassionate investigation. That
end seems a good distance away.
Obama has already rejected the bright sunlight of public
knowledge, which is democracy’s great disinfectant and cure.
Although he released the Bush administration’s legal memos
that clinically authorized specific torture techniques, his Justice
Department has decided that the torturers themselves will not
be prosecuted. Nor will a formal inquiry be launched to investigate
and document the “enhanced interrogation techniques”
used in the CIA’s secret prisons overseas, the “extraordinary
rendition” of suspects seized in one country and spirited to
another, the National Security Agency’s unlawful interception
of communications inside the United States, the random jailing
of Muslims immediately after 9/11 and a host of other abuses.
Taking that kind of hard look is something “we do when
it comes to Katrina or BP or 9/11,” said David Cole, a law
professor at Georgetown University, “but it’s not something
we’ve done when it comes to violations of civil rights. It’s an
important task, but I see no willingness to go
there. It would take some disclosure, some leak,
something that says, ‘Oh my God—it’s worse
than we thought!’”
Obama prefers to look forward, not back,
as he has stated. So at least during his tenure,
there will be no reliable record compiled as a
cautionary tale for lawmakers and presidents in
future times of crisis. This is the ahistorical Obama. But surely
the introspective and worldly Obama—the man who crosses
cultures and embraces nuance—has noticed that nations cannot
look forward clearly without first looking back. South
Africa, Rwanda, Cambodia, Russia and the former Yugoslavia
all come to mind, and the roll call goes on in a drumbeat of
wrongdoing and confrontation between past and future.
America has heard no clamor for an accounting. Most
book-length investigations are sparsely reviewed by newspapers,
their authors mostly ignored by Diane Rehm, Terry
Gross, Charlie Rose and the other serious talk-show hosts.
The general public displays a nonchalant conviction that “others”
are the targets of constitutional violations—not “us,” but
rather Muslims, foreigners and terrorists. “I’m happy to give
up your rights for my safety” seems the conventional view, an
insular cynicism that carries easily into Congress, which has
no stomach for investigation either. The Senate Intelligence
Committee examined torture, but in secret, without the public
hearings essential to citizens’ education. And its 6,000-page
report, approved by a 9-6 party-line vote in December, is
being censored before release by the CIA and other government
agencies with strong motives to suppress the ugly details.
“The advantage of the Church Committee was that it was very
bipartisan, looking back to multiple administrations, Democratic
and Republican,” noted Joseph Onek, a veteran of the Carter and
Clinton administrations and a senior counsel to Nancy Pelosi
when she was House majority leader. “If the Obama administration
did some terrible things, then some future administration
could study the Bush era and the Obama era.”
But first the terrible things would have to become known,
and they would have to be perceived as terrible. One ongoing
investigation has that potential. In 2010, the FBI raided
the homes of seven antiwar activists in Chicago, Grand
Rapids and Minneapolis, carting off boxes of personal letters,
children’s drawings, computers, political posters and
other materials. FBI agents questioned other leftists in
Michigan, Wisconsin, California and North Carolina, and
served grand jury subpoenas on a total of twenty-three people,
at least some of whom had traveled to the Middle East
to meet with a Palestinian women’s group possibly linked to
the Popular Front for the Liberation of Palestine (PFLP),
and to Colombia to meet with FARC (the Revolutionary
Armed Forces of Colombia), which are both on the State
Department’s list of terrorist organizations. All those people
subpoenaed refused to testify, citing their Fifth Amendment
right against self-incrimination.
At issue may be the vaguely worded federal prohibition
against providing “material support” to foreign terrorist
groups. In 2010, the Supreme Court upheld the law as constitutional
when it criminalizes speech that is being coordinated
with such organizations—even if it takes the form of advice
on using nonviolence and respecting international law. No
indictments have been brought as of this writing, but at least
eleven members of Congress, sixty-two Minnesota legislators
and various labor union leaders have already warned the FBI
about the specter of a political prosecution.
Most incursions on the Bill of Rights—especially the
Fourth Amendment’s protection against unreasonable
search—have been clandestine and invisible.
Senators who know can’t say, as Ron Wyden of
Oregon noted in 2011 when he declared on the
Senate floor, “I have served on the Intelligence Committee for a
decade, and I want to deliver a warning this afternoon: when the
American people find out how their government has secretly
interpreted the Patriot Act, they will be stunned and they will
be angry. And they will be asking senators, ‘Did you know what
this law actually permits?’… Many members of Congress have
no idea how the law is being secretly interpreted by the executive
branch, because that interpretation is classified.”
Senator Obama voted in 2008 to amend FISA in a way
that virtually legalizes the sort of widespread intercepts, with
minimal judicial oversight, that Democrats had denounced
the Bush administration for secretly initiating in 2001. Now
President Obama presides over the same permissive system,
just extended for five years.
In a case currently before the Supreme Court, Clapper v.
Amnesty International, the Obama administration’s brief maintains
that the amended law “does not require an individualized
court order addressing each non-United States person to be
targeted,” but allows surveillance warrants “that identify categories
of foreign intelligence targets.”
The word “categories” is the tip-off, according to the
ACLU, whose brief for Amnesty asserts that every communication
between anyone in the United States and a non-American
abroad can be monitored in “the kind of vacuum-cleaner-style
surveillance that the Church committee found so troubling.”
Rather than aiming “its surveillance power at a specific person
thought to be the agent of a foreign power,” the ACLU notes,
the federal government can designate as targets of surveillance
“a group of people, a neighborhood, a country, or a geographic
region.” But no congressional action is needed to halt this
practice, said Jameel Jaffer, the ACLU’s deputy legal director:
“There is nothing to prevent President Obama
from issuing an executive order disavowing dragnet
Similarly, Jaffer noted, the executive branch
can improve the fairness of the military commissions
that are slated to try some of the
Guantánamo detainees, including those charged
with organizing the 9/11 attacks. “Even if you
accept that military commissions are here to stay, there’s a
question of what the rules should be,” he said. For example,
defendants may not tell the court that they were tortured
because, as the Obama administration has argued, statements
made in CIA detention are classified. “That regime should
be offensive to anybody,” Jaffer said. “Imagine if another
country—China or India—proposed that ‘we’re going to hold
public trials of these people, who are accused of the most
egregious offenses against the country. But when they begin
to talk about the way they were treated in interrogation, the
government is going to push a button to silence them.’”
To his credit, Obama ordered an end to torture and tried
to move the 9/11 cases to federal civilian courts, where they
belong, only to be blocked by Congress. Instead, the novel
military commissions are feeling their way closer to the protections
provided for defendants’ rights in courts-martial. “The
differences are smaller and smaller,” said Cole, “and once those
differences disappear, then we’ve won… more or less.”
But those who are not brought before military commissions
or civilian courts—including Americans abroad
whose names are placed on a kill list—have no rights.
They are condemned to death by drone with no
chance to contest the secret evidence against them,
which may be as flawed as the intelligence leading to the Iraq
War. Obama has ignored calls to cite some legal justification
for taking on the extraordinary power of assassination, and he
has also refused to open the secret selection process he has
established to scrutiny.
A wish list of actions to restore the US Constitution and
the rule of law to the country’s counterterrorism efforts runs
the gamut from the esoteric to the obvious. It includes fulfilling
Obama’s stated goal of closing Guantánamo and repatriating
exonerated prisoners—moves that Congress has impeded
by inserting restrictions into military funding bills that Obama
finds awkward to veto. So as he signed the National Defense
Authorization Act of 2013 in early January, he resorted to
a signing statement asserting his constitutional authority to
ignore the law’s obstacles to transferring inmates from the
prisons at Guantánamo and Bagram airbase in Afghanistan.
Obama could also reject indefinite imprisonment without
trial. He could press Congress for an explicit prohibition
against the military detention of any civilian seized in the
United States—whose legality under current statute is the
subject of debate.
The list goes on and on. Return the country to the tight,
pre-9/11 secret warrant requirements for electronic surveillance.
Curtail the use of warrantless “national security letters.”
Narrow the scope of what can be prosecuted as “material
support” for terrorism. Stop invoking state secrecy to block
lawsuits by torture victims. Halt the widespread infiltration
of American Muslim communities. Use FBI sting operations
more judiciously to avoid luring hapless wannabes into manufactured
plots. Allow groups officially branded as terrorist
organizations to see the evidence against them and mount fair
challenges to being so designated. Appoint a commission with
broad powers to investigate the abuses of the last decade.
Beyond counterterrorism, Obama could initiate significant
change. True immigration reform means more than visas and
amnesty; it should grant constitutional rights to those jailed
under an administrative system that now denies them the
government-provided lawyers and due process available to
criminal defendants.
Ordinary criminal procedures having nothing to do with
counterterrorism also stand in need of overhaul and presidential
leadership. In its first term, the Obama administration
took the wrong side on key issues: it opposed new rules on
the timely disclosure of exculpatory evidence, for example,
and argued unsuccessfully in the Supreme Court that police
should be permitted to install GPS devices to track any vehicles
without showing probable cause and getting warrants, as
required by the Fourth Amendment. In court cases, Obama’s
Justice Department and solicitor general have endorsed
expansive powers and unqualified immunity for intelligence
and law enforcement personnel who violate citizens’ rights.
If his second term resembles his first, Obama will leave
the country with an inheritance more threatening than crime
or terrorism. The danger lies in the enormous authority
being provided to the executive branch, power that is increasingly
embedded in statutes and case law. The president and
Attorney General Eric Holder seem to be saying, “Trust
us,” as when Obama declared that he would “not authorize
the indefinite military detention without trial of American
citizens”—even as he signed the National Defense Authorization
Act, which may allow just that. Perhaps this president is a good
guy at heart, but what about the next one… and the next?
“I’d suggest to Obama that he read The Lord of the Rings,”
Susan Herman said. “He’s accepted these powerful weapons,
which he and Eric Holder are going to use wisely. Having
these powerful weapons in the hands of the executive is dangerous.
He’s leaving a legacy that can be misused.” 


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