By David K. Shipler
Perhaps the most salient element in President Obama’s speech on national security last week was his attempt to begin weaning the United States from its post-9/11 mindset. If he pursues the effort and revises policy accordingly, he might help the country move away from fear and back toward the constitutional principles that have been sacrificed unnecessarily. This would end an era that is begging to be left behind.
But his record has not been encouraging, and the environment he faces is not helpful. The problem is a mixture of reality and beliefs. Fear has to abate, but it won’t when real terrorism maims and kills at a Boston Marathon, or when the word “terrorism” is applied too broadly, as Republicans and some conservative pundits demand. Hardly anyone is comforted to learn, as Obama explained, that the threats now come from atomized al-Qaeda offshoots and radicalized individuals, rather than by centralized direction.
Yes, as he noted, that looks more like the baseline of terrorism the world has endured since long before 9/11. But it is not enough for Obama to say so. As he may have learned from earlier attempts to change emotional dynamics through speechmaking, actions speak louder than words. His well-crafted 2009 Cairo speech extending an open hand to the Muslim world was not followed by intensive, inventive policy. Four years later, on the other hand, his recent address in Jerusalem on Israeli-Palestinian peace is being followed by Secretary of State John Kerry’s shuttle diplomacy—a good effort whose outcome is not yet clear.
So let’s see if Obama follows his words on national security. He might consider how his administration’s behavior contributes to the problem of belief—namely, the public’s belief that we are still in the war whose end he now wishes to declare.
For example, general support for intrusive, invisible surveillance is only bolstered when the FBI induces hapless wannabes to plan fanciful plots, then arrests them with great fanfare to create the impression that a real attack has been thwarted. A sense of risk is not reduced by an Attorney General who characterizes legitimate press reporting as a danger to American lives. And a president who assumes the unchallenged authority to execute Americans by drone, without anything resembling due process, is not leading his fellow citizens toward a postwar era.
What makes this poignant is Obama’s remarkable sophistication. Few other presidents have managed to acknowledge opposing concerns as respectfully as Obama in his speech. Rarely have his predecessors dared lay out the pros and cons of a proposed solution, as he did on the question of whether drone targets might be approved or denied by a special court or an administrative body.
You could almost see his mind at work and feel his ambivalence, as if the decisions he felt he had to make did not sit well with him. The limits of a president’s powers are bound to be a theme of his memoirs, which should make fascinating reading.
Yet he has made serious mistakes of his own accord by allowing the post-9/11 national security state to become codified in law, case law, and administrative practice. He has taken positions that undermine the right to habeas corpus, erode the individual citizen’s standing to challenge the constitutionality of draconian surveillance laws, and practically erase the ability of the tortured and the kidnapped to pursue civil suits against the government. In this he has won dubious victories from conservative judges who are very unlike the ones he has sought to name to the bench.
His administration’s incessant leak investigations, which have forced reporters to take precautions akin to some that we used with dissidents in Moscow during the Soviet era, are an illustration of a prosecutorial mentality run amok. Obama gave a nod in his speech to the value of a free press and the risk of chilling the flow of information, but his administration’s use of the flawed World War I Espionage Act to subject government officials to the terror of persecution—the word is apt—is unprecedented in this country.
The investigative resources devoted to hunting down leaks have been staggering. Thomas Tamm, a Justice Department official who told The New York Times about the Bush Administration’s illegal warrantless surveillance, learned that 25 FBI agents were assigned to his case, which continued well into the Obama Administration until dropped because prosecutors could find no law that he had violated. But his career is in shambles, his finances are desperate, and he barely scrapes by in a rented office in suburban Maryland.
Such pernicious use of prosecutorial powers does not increase government transparency, as Obama promised he would do when elected. Technology is so advanced and the national security mindset so entrenched, that it’s become easy for government to find out everyone whom reporters have contacted, just by issuing subpoenas for journalists’ phone and e-mail records, as the Justice Department did in a sweeping search of the Associated Press.
In the past, government officials who wished to speak anonymously relied on reporters’ pledges to protect their confidentiality, even if it meant defying a court order and going to jail, as some have. Now government investigators can just search for sources by searching reporters’ digital and telephone contacts.
The changed landscape was described a year and a half ago by intelligence officials at a meeting with Lucy Dalglish, a lawyer who headed the Reporters Committee for Freedom of the Press. “One of them was taunting me, saying, ‘You’ve seen your last subpoena. We don’t need your people.’” The result is that government sources have grown averse to talking with reporters on background, and that seems likely to impede the public’s insights into their government’s behavior.
The aggressive leak investigations contradict Obama’s stated desire to lead us out of this wartime era. They create an impression of high risk, ongoing indefinitely. Altogether, his administration’s actions continue to anchor the country firmly in what can be counted as the sixth historical era of departures from constitutional principles in the name of national security.
The current period was preceded by the Alien and Sedition Acts under John Adams, the suspension of habeas corpus during the Civil War, the Espionage Act and prosecutions of anti-war dissidents during World War I, the Smith Act and internment of Japanese-Americans during World War II, and the illegal domestic spying and dirty tricks against anti-war and civil rights activists during the Cold War.
All those eras ended. If Obama truly wants this one to end, he’s got to put more than his speechwriters on the case.