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Civil rights campaigners were thrilled when a constitutional lawyer entered the White House, expecting Barack Obama would restore the rights they felt had been eroded during George W. Bush’s presidency.
This would include closing the prison camp at Guantanamo Bay and seeking a better way to handle detainees accused of terrorism.
Once entering the White House, however, Mr. Obama was faced with having to deal with the realities of the fight against terrorism and keeping Americans safe.
Guantanamo is still open, military commissions — where the jury is made up of military officials and the U.S. Constitution doesn’t apply — still operate, he has authorized the “targeted killings” of American citizens, and the Patriot Act — called a “surveillance superstructure” by the American Civil Liberties Union (ACLU) — has been extended.
The Democratic president has gone even further. A new law, the National Defense Authorization Act (NDAA), is the subject of a recent lawsuit and remains at the centre of a controversy over just how much it erodes civil liberties.
“Obama has been an unmitigated disaster for civil liberties,” said Jonathan Turley, a U.S. legal scholar.
Activists have fought back by challenging the Obama administration in court over Section 1021 of the NDAA.
This would have stripped U.S. citizens of due process in suspected terrorism cases and allowed the military to hold them indefinitely.
This could include anyone “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
“My 20 years as a foreign correspondent put me in direct contact with 17 organizations listed on the State Department Terrorism List,” he noted.
In June, the U.S. Supreme Court upheld a federal law that makes it a crime to provide “material support” to foreign terrorist organizations. That support could include “training,” “personnel,” “service” and “expert advice or assistance.”
Some critics believe the law is so wide-ranging that just advising terrorists to adhere to non-violent tactics would be a crime.
Civil liberties have followed a pendulum pattern throughout history: Attacks on liberties have been followed by demands for reform, Mr. Turley said. Today, the pendulum has not swung back, he said.
Instead, civil liberties are being increasingly curtailed as the president extends his powers. Surveillance and warrantless searches have mushroomed — with relatively little backlash.
“The irony is that Obama has realized the dream of Richard Nixon in creating an imperial presidency,” Mr. Turley said.
The killings of American citizens have also outraged activists.
The Center for Constitutional Rights (CCR) and the ACLU are representing the family of Abdulrahman Al-Aulaqi, a 16-year-old American-Yemeni, who died in a October drone strike in Yemen. This was two weeks after his father, Anwar Al-Aulaqi, a radical Muslim cleric with Yemeni and U.S. citizenship and a propagandist for al-Qaeda, was killed with Samir Khan, an American citizen, in a similar strike.
“Undertaken without due process, in circumstances where lethal force was not a last resort to address a specific, concrete and imminent threat, and where the government failed to take required measures to protect bystanders, rises to a violation of the most elementary constitutional right afforded to all
U.S. citizens — deprivation of life without due process of law,” the centre said.
Eric Holder, the U.S. attorney-general, has defended the targeted killings.
“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaeda or associated forces,” he told law students at Chicago’s Northwestern University in March.
“This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
Due process is granted by the Fifth Amendment: No one shall be “deprived of life, liberty or property without due process of law.” Judicial process involves some kind of trial or hearing.
Civil libertarians don’t buy Mr. Holder’s argument.
“Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact,” said Hina Shamsi, director of the ACLU’s national securities project.
Michael Ratner, president emeritus of the CCR, was equally appalled.
“Just because you’re not an American citizen doesn’t mean you should get less due process,” he said.
“Due process is not having the president designate an American citizen for death, and then killing him. Due process involves some court process.”
He also faults Mr. Obama for not revising Federal Bureau of Investigation guidelines. In the last 30 days of the Bush administration, he said, attorney-general Michael Mukasey issued new rules for the FBI that allowed agents to do “almost anything.”
If there were ever any restraints on the FBI conducting domestic surveillance, there no longer are, he says.
For his part, Mr. Obama has defended his moves. In a May speech he said national security requires “a delicate balance.”
“Right now in distant training camps and in crowded cities, there are people plotting to take American lives,” he said. “That will be the case a year from now, five years from now, and — in all probability — 10 years from now.”
He reiterated his commitment to protecting Americans’ rights and freedoms, but said his “single most important responsibility as president is to keep the American people safe.”
He did not say to what extent he would be willing to restrict their civil liberties in order to do so.
Stuart Gottlieb, adjunct professor of international and public affairs at Columbia University in New York, says the Obama administration isn’t necessarily in the wrong.
In his view, Mr. Obama recklessly over-promised to reverse the Bush administration’s counterterrorism policies in his 2008 campaign, actions he attributes to Mr. Obama being overzealous and under-informed.
In an article in American Lawyer, Prof. Gottlieb wrote: “Reconciling the dichotomy between its counterterrorism rhetoric and policies requires that the Obama administration finally embrace the obvious: that the core of the Bush policies will remain necessary in America’s fight against global terrorism for many years to come; and, more importantly, that the Obama administration’s continuation (and refinement) of Bush’s policies has in fact helped institutionalize an effective, bipartisan approach to fighting terrorism.”
Legal experts and civil libertarians are pessimistic about the situation improving.
When asked whether he thought there would be a restoration of the civil liberties that have been lost since 9/11, Mr. Turley was divided.
“Hope springs eternal, but that would be certainly a case of hope over experience,” he said.
“I think there will have to be a public, a greater public movement. The impediment remains Obama himself.”
Mr. Ratner was more pessimistic.
“It’s going to be hard to get this one back,” he said.
National Post
This would include closing the prison camp at Guantanamo Bay and seeking a better way to handle detainees accused of terrorism.
Once entering the White House, however, Mr. Obama was faced with having to deal with the realities of the fight against terrorism and keeping Americans safe.
Guantanamo is still open, military commissions — where the jury is made up of military officials and the U.S. Constitution doesn’t apply — still operate, he has authorized the “targeted killings” of American citizens, and the Patriot Act — called a “surveillance superstructure” by the American Civil Liberties Union (ACLU) — has been extended.
The Democratic president has gone even further. A new law, the National Defense Authorization Act (NDAA), is the subject of a recent lawsuit and remains at the centre of a controversy over just how much it erodes civil liberties.
“Obama has been an unmitigated disaster for civil liberties,” said Jonathan Turley, a U.S. legal scholar.
Activists have fought back by challenging the Obama administration in court over Section 1021 of the NDAA.
This would have stripped U.S. citizens of due process in suspected terrorism cases and allowed the military to hold them indefinitely.
This could include anyone “who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
‘The irony is that Obama has realized the dream of Richard Nixon in creating an imperial presidency’
Chris Hedges, a Pulitzer Prize-winning journalist, said he was also concerned the section did not have an exemption for journalists who might have to deal with terrorist organizations as part of their job.“My 20 years as a foreign correspondent put me in direct contact with 17 organizations listed on the State Department Terrorism List,” he noted.
In June, the U.S. Supreme Court upheld a federal law that makes it a crime to provide “material support” to foreign terrorist organizations. That support could include “training,” “personnel,” “service” and “expert advice or assistance.”
Some critics believe the law is so wide-ranging that just advising terrorists to adhere to non-violent tactics would be a crime.
Civil liberties have followed a pendulum pattern throughout history: Attacks on liberties have been followed by demands for reform, Mr. Turley said. Today, the pendulum has not swung back, he said.
Instead, civil liberties are being increasingly curtailed as the president extends his powers. Surveillance and warrantless searches have mushroomed — with relatively little backlash.
“The irony is that Obama has realized the dream of Richard Nixon in creating an imperial presidency,” Mr. Turley said.
AFP Photo / Jim Watson
This January 19, 2012 file photo shows the front gate of a detention facility at the U.S. Naval Station in Guantanamo Bay, Cuba.
The Center for Constitutional Rights (CCR) and the ACLU are representing the family of Abdulrahman Al-Aulaqi, a 16-year-old American-Yemeni, who died in a October drone strike in Yemen. This was two weeks after his father, Anwar Al-Aulaqi, a radical Muslim cleric with Yemeni and U.S. citizenship and a propagandist for al-Qaeda, was killed with Samir Khan, an American citizen, in a similar strike.
“Undertaken without due process, in circumstances where lethal force was not a last resort to address a specific, concrete and imminent threat, and where the government failed to take required measures to protect bystanders, rises to a violation of the most elementary constitutional right afforded to all
U.S. citizens — deprivation of life without due process of law,” the centre said.
Eric Holder, the U.S. attorney-general, has defended the targeted killings.
“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaeda or associated forces,” he told law students at Chicago’s Northwestern University in March.
“This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
Due process is granted by the Fifth Amendment: No one shall be “deprived of life, liberty or property without due process of law.” Judicial process involves some kind of trial or hearing.
Civil libertarians don’t buy Mr. Holder’s argument.
“Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact,” said Hina Shamsi, director of the ACLU’s national securities project.
‘Right now in distant training camps and in crowded cities, there are people plotting to take American lives’
“Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extra-judicial killing should ask whether they would be willing to trust the next president with that dangerous power.”Michael Ratner, president emeritus of the CCR, was equally appalled.
“Just because you’re not an American citizen doesn’t mean you should get less due process,” he said.
“Due process is not having the president designate an American citizen for death, and then killing him. Due process involves some court process.”
He also faults Mr. Obama for not revising Federal Bureau of Investigation guidelines. In the last 30 days of the Bush administration, he said, attorney-general Michael Mukasey issued new rules for the FBI that allowed agents to do “almost anything.”
AP Photo/Kirsty Wigglesworth
An unmanned U.S. Predator drone flies over Kandahar Air Field in southern Afghanistan.
For his part, Mr. Obama has defended his moves. In a May speech he said national security requires “a delicate balance.”
“Right now in distant training camps and in crowded cities, there are people plotting to take American lives,” he said. “That will be the case a year from now, five years from now, and — in all probability — 10 years from now.”
He reiterated his commitment to protecting Americans’ rights and freedoms, but said his “single most important responsibility as president is to keep the American people safe.”
He did not say to what extent he would be willing to restrict their civil liberties in order to do so.
Stuart Gottlieb, adjunct professor of international and public affairs at Columbia University in New York, says the Obama administration isn’t necessarily in the wrong.
In his view, Mr. Obama recklessly over-promised to reverse the Bush administration’s counterterrorism policies in his 2008 campaign, actions he attributes to Mr. Obama being overzealous and under-informed.
In an article in American Lawyer, Prof. Gottlieb wrote: “Reconciling the dichotomy between its counterterrorism rhetoric and policies requires that the Obama administration finally embrace the obvious: that the core of the Bush policies will remain necessary in America’s fight against global terrorism for many years to come; and, more importantly, that the Obama administration’s continuation (and refinement) of Bush’s policies has in fact helped institutionalize an effective, bipartisan approach to fighting terrorism.”
Legal experts and civil libertarians are pessimistic about the situation improving.
When asked whether he thought there would be a restoration of the civil liberties that have been lost since 9/11, Mr. Turley was divided.
“Hope springs eternal, but that would be certainly a case of hope over experience,” he said.
“I think there will have to be a public, a greater public movement. The impediment remains Obama himself.”
Mr. Ratner was more pessimistic.
“It’s going to be hard to get this one back,” he said.
National Post
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