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

surveillance.”

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.”