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.
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