The Civil Libertarian's Lament

Civil libertarians have good reason to feel betrayed by President Obama's embrace of Bush-Cheney national security policies (including his invocation of a state secrets privilege and continuing reliance on military commissions), but we can't claim not to have been warned. In July 2008, candidate Obama reversed himself and voted for amendments to the Foreign Intelligence Surveillance Act (FISA) that expanded executive authority to spy on us, without warrants, and retroactively immunized the telecoms for enabling the Bush administration's illegal, warrant-less surveillance program. Obama's previously explicit opposition to immunizing the telecoms (and shutting down lawsuits that promised to expose the scope of the administration's lawlessness) inconvenienced his presidential campaign. (Not surprisingly, Glenn Greenwald chronicled the sorry saga here.)

The audacity of politics exposed the naiveté of hope I observed at the time, but I still believed that Obama would prove more sensitive to civil liberty than John McCain. These days, I'm not sure what to believe. Having endorsed ad hoc, indefinite detention without trial for some Guantanamo prisoners, the president is now said to be open to codifying a system of indefinite detention, Politico reports, citing a statement by Lindsey Graham: "The White House is considering endorsing a law that would allow the indefinite detention of some alleged terrorists without trial as part of efforts to break a logjam with Congress over President Barack Obama's plans to close the Guantanamo Bay prison, Sen. Lindsey Graham (R-S.C.) said Monday." The White House used up 50 words to say little in response: "Sen. Graham has expressed interest in habeas reform and other policy ideas. We will review constructive proposals from Sen. Graham and other members of Congress that are consistent with the national security imperative that we close Guantanamo and ensure the swift and certain justice the families of victims have long deserved."

But this vacuous statement is not innocuous. It acknowledges the demands of "families of (presumably 9/11) victims," along with the national security benefits of closing Guantanamo, while omitting any mention of due process. When an administration spokesman talks about "swift and certain justice" for families, he means swift and certain convictions, with or without trials.

A majority of voters may be content to hang suspected terrorists first and try them later, but a majority of voters probably does not expect that its own rights may be defined by the rights we extend to terror suspects. Opposition to closing Guantanamo and affording due process to people who are only suspected of terrorism by officials who do, after all, make mistakes, reflects the cognitive dissonance that characterizes political protests today. Discontented voters don't trust government to do much of anything right, except, it seems, arrest and detain without trial only those dangerous terrorists who deserve to be detained. Visions of government incompetence morph into visions of government infallibility when the subject is fighting terrorism. Fifty percent of voters favor smaller government delivering fewer services, (according to a recent Pew survey); some rage against dictatorship in the form of universal health care; but generally the public has acquiesced in the creation of an expansive national security state that appropriates the dictatorial power to torture and detain people indefinitely, whether or not they've been found guilty of any crimes, or acts of war.

So Obama has been quick to discard what was apparently a shallow, shaky commitment to civil liberty and the rule of law. He could have led on civil liberty, co-opting the rhetoric of freedom so effectively and disingenuously employed by the right. He could have had the courage of what Jane Mayer suggests were Attorney General Holder's convictions. Instead this former constitutional law professor even neglected to try filling many crucial vacancies in the federal judiciary, which will determine our rights and liberties long after he has left office.

Of course, Republicans have effectively blocked confirmation of judicial (and administrative) nominees, but while the rate of Senate confirmation is low, so is the number of Obama's judicial nominations, the Alliance for Justice reports, "President Obama has thus far nominated fewer circuit court judges than Bush II...and fewer district court judges than Carter, Reagan, Clinton, and Bush II ... during the first year of his presidency." It should be needless to add that prospects for the second year of his presidency (never mind the third and fourth) have darkened considerably.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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