March 20, 2009

Nicole Colson examines the Obama administration's recent decisions on civil liberties--from policies toward detainees in the "war on terror" to the legality of warrantless wiretapping.

DEFENDING GOVERNMENT eavesdropping without a warrant. Arguing that prisoners of the U.S. held overseas don't have the right to challenge their detention in U.S. courts. Claiming that victims of CIA kidnapping shouldn't have their cases heard because of "national security" interests.

These were supposed to be relics of the Bush administration and its attacks on basic constitutional and human rights. Instead, they are among the many troubling actions taken by the new administration of President Barack Obama.

Rather than repudiating Bush's shredding of the Constitution, the new White House is embracing some of the worst abuses carried out by the Bush administration in the name of national security and the "war on terror."

As a candidate for president, Obama promised a new direction. While pledging to maintain national security, Obama said that "we also want to make sure that we're protecting the Constitution, and that we're not excessively providing the president with a sort of a 'blank check' when it comes to dealing with national security," he told ABC's This Week.

And, in fact, it was refreshing to hear Obama's new Attorney General Eric Holder declaring bluntly during his confirmation hearings that "waterboarding is torture." It was a forceful repudiation of one aspect of the Bush administration, at least--Vice President Dick Cheney had, after all, openly defended "waterboarding" in October 2006.

This seemed to confirm the expectations expressed by Obama supporters like George Washington University law professor Jeffrey Rosen, who wrote in a March 2008 op-ed article in the New York Times: "As a former grassroots activist, Mr. Obama understands the need to make the case for civil liberties in the political arena. At a time when America's civil-libertarian tradition has been embattled at home and abroad, his candidacy offers a unique opportunity."

But just two months into his presidency, the "unique opportunity" that Rosen thought Obama represented seems to be evaporating. The litany of disappointing actions on civil liberties taken by the Obama administration seems to grow longer by the week.

Among other things, since taking office, the Obama administration has: pre-empted a Supreme Court ruling on whether a legal resident on U.S. soil can be imprisoned indefinitely without trial as an "enemy combatant"; attempted to block a judicial ruling on Bush's warrantless wiretapping program; asserted in court that prisoners currently held overseas by U.S. forces in Bagram, Afghanistan, have no constitutional right to challenge their detentions in U.S. courts; and argued to dismiss cases brought in federal court by alleged victims of CIA kidnappings and torture on the grounds of "national security."

As ACLU Executive Director Anthony Romero said after Obama's Justice Department argued in federal court that a lawsuit filed by five current and former detainees against Jeppesen Dataplan--a company accused of arranging extraordinary rendition flights for the CIA--should be dropped:

Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue.

THE REVERSALS from what Obama promised--or was expected--to do on civil liberties questions have shocked many people who looked forward to the end of the Bush regime.

On the question of warrantless wiretapping, for example, the Obama administration's arguments in one important court case are indistinguishable from its predecessors.

In the case, brought by two American lawyers against the Bush administration, a federal judge ruled in favor of admitting into evidence a classified document showing that the lawyers for a Saudi charity, the Al-Haramain Islamic Foundation, were electronically eavesdropped on without warrants by the Bush administration.

The Obama administration argued in court that national security would be compromised if the lawsuit was allowed to proceed. As Salon.com's Glenn Greenwald wrote:

Manifestly, the Obama [Justice Department] has one goal and one goal only here: to prevent any judicial ruling as to whether the Bush [National Security Agency] warrantless eavesdropping program was illegal. And they're engaging in extraordinary efforts to ensure that occurs... Everyone knows the Bush administration spied on Americans without warrants and in violation of the law. Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on. Still, there's the Obama administration -- just like the Bush administration--claiming that we'll all be slaughtered if a court rules on whether the president broke the law.

Another disappointment came in early March, when the Justice Department argued in a California federal court to dismiss a case filed against former Bush administration official John Yoo.

Yoo famously drafted much of the so-called "Bybee torture memo"--a Justice Department document that approved the use of CIA interrogation methods, including rendition, and blessed as legal methods of physical and psychological coercion that inflicted discomfort "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Last year, lawyers for supposed "dirty bomb" plotter Jose Padilla--a U.S. citizen who spent years in a military brig without being charged, and subject to sensory and sleep deprivation and other harsh interrogation measures--filed a suit against Yoo.

If heard, it could challenge the government's policies on the treatment of detainees. According to one of the lawyers, Jonathan Freiman, the premise of the suit is that "a lawyer who gives the green light to clearly illegal conduct is an accomplice to that conduct."

But the Obama Justice Department is standing behind Yoo--on the grounds that "the Department of Justice generally defends employees and former employees in lawsuits that are filed in connection to their official duties," according to department spokesperson Matthew Miller.

"We're not saying that we condone torture," Justice Department lawyer Mary Mason said at the hearing on the suit.

But by arguing that the case against Yoo should be dismissed, the Obama administration is protecting the very man who crafted the legal reasoning to justify torture as an acceptable part of the U.S. "war on terror." How is that not "condoning torture"?

The Obama administration isn't protecting just Yoo, but other top Bush administration military officials who are the targets of lawsuits brought by prisoners who say they were tortured while being held at Guantánamo Bay.

In another federal court document filed in March, the Justice Department argued that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy. "The Obama administration appears to be sticking with Bush administration legal definitions in pending litigation," reported the Associated Press.

The case, involving four British men who say they were beaten, shackled in "stress positions" and forcibly shaved while they were imprisoned in Guantánamo Bay (all four have since been released) named, among others, former Secretary of Defense Donald Rumsfeld and retired Gen. Richard Myers, former chair of the Joint Chiefs of Staff.

As Eric Lewis, an attorney for the four, put it: "The upshot of the Justice Department's position is that there is no right of detainees not to be tortured, and that officials who order torture should be protected."

EVEN WHEN the Obama administration has seemed to take positive steps to turn back some of the Bush administration's abuses, the full picture is more complicated.

So, for example, civil liberties advocates applauded Obama's executive orders to close the U.S. prison camp at Guantánamo Bay, affirm detainees' right to habeas corpus and instruct that prisoners be treated according to the Geneva Conventions when interrogated by U.S. officials. But it turns out that these orders have wide loopholes.

The order on interrogations, for example, only applies to prisoners "in the custody or under the effective control of an officer, employee or other agent of the United States Government, or detained within a facility owned, operated or controlled by a department or agency of the United States, in any armed conflict."

That formulation would allow the use of torture by other governments' security forces operating on orders from the U.S.--under, for example, the "extraordinary rendition" program used by the Bush administration to evade the law by sub-contracting torture to to U.S.-allied regimes.

In addition, the order demands that the CIA close "as expeditiously as possible" any of its detention centers, but says nothing about whether the FBI, Defense Department or any other U.S. body--or private contractors such as Blackwater--may run such facilities. As Professor James Hill noted, "This order contains loopholes big enough to drive a FEMA camp train through them."

Likewise, in February, it seemed like a positive sign when Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the "state secrets" privilege to have lawsuits thrown out.

But according to the Associated Press, on the same day that Holder announced his review, Douglas Letter, an attorney for the Justice Department's civil division, cited the same "state secrets privilege in asking a federal appeals court to uphold dismissal of a lawsuit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations where they would be tortured. Three times, Letter assured the judges his position had been approved by Obama administration officials."

To take another example, earlier this month, the media reported that the Obama administration had dropped the term "enemy combatants" as a justification for detaining terrorism suspects without trial.

But as the New York Times reported, "[I]n a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects [at Guantánamo Bay] without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.

"The filing signaled that, as long as Guantánamo remains open, the new administration will aggressively defend its ability to hold some detainees there."

As Glenn Greenwald put it, "[T]he Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes--designed to generate headlines misleadingly depicting a significant reversal ("Obama drops 'enemy combatant' label")--while, in fact, retaining the crux of Bush's extremist detention theory."

There is no "middle ground" on these questions. Those who justified, condoned, participated in and ordered the torture of detainees should be held accountable--starting with George W. Bush. Citizens should have a right not to be spied on by their government. Detainees should have rights under international law, including the right to a trial.

But the Obama administration isn't taking anything like a principled stand on these questions.

On the contrary, while it wants to change the popular perception of federal policies on civil liberties, the evidence is mounting that the Obama administration is putting a new face on many of the same abuses we've been living with for the past eight years.