http://www.nationaljournal.com/magazine/republic-of-fear-20120426
Republic of Fear
President Obama was supposed to reverse the
counterterrorism excesses that had eroded our civil liberties. Instead,
those excesses became part of who we are.
By James Kitfield
Updated: April 30, 2012 | 9:58 a.m.
April 26, 2012 | 2:00 p.m.
AP Photo/Brennan Linsley
Fortified society: Guantánamo prison is still open.
Barack Obama looked improbably
younger then, before the strains of the Oval Office began to fully
settle into his features. After only four months as commander in chief,
he was prepared to end the season of fear, as he put it. It had been a
reactionary period when the government made well-intentioned but hasty
decisions based on alarm about another attack rather than foresight.
U.S. officials and a compliant Congress had determined that
antiterrorism ends justified nearly any means. Americans had abandoned
cherished values as luxuries that they suddenly could no longer afford.
So in May 2009, Obama stood in the National Archives, surrounded by the
Republics founding documentsa reminder and a reproachand made clear
exactly where he stood.
During this season of fear, too many of usDemocrats and
Republicans, politicians, journalists, and citizensfell silent, the
president said. To end that silence, Obama had in his first days in
office banished torture and announced the closing of the prison at
Guantánamo Bay within a year. He promised to create a new legal regime,
consistent with the rule of domestic and international law, for
suspected terrorists; to declassify more information in an era of
renewed government transparency; and to disavow sweeping presidential
powers. If we fail to turn the page on the approach that was taken over
the past several years, then ... we cannot stand for our core values,
Obama said. Then we are not keeping faith with the documents enshrined
in this hall. It was a civil libertarians dream speech.
And whats more, Obama seemed to have a mandate for this shift. Even
President Bush said several times during his second term that he wanted
to close Guantánamo. Then, in 2008, voters nominated two presidential
candidates, Obama and John McCain, who opposed torture and wanted to
close the U.S. military prison in Cuba. The Democrats new Congress
would surely reject the politics of fear that had characterized so much
of the counterterrorism debate in the post-9/11 years. A majority of
Americans (51 percent) approved of Obamas decision to shut Gitmo. Our
government, finally, seemed ready to restore its age-old values.
It was a mirage. The springtime for civil liberties came and went,
restoring a winter of state control. Today, Guantánamo remains.
Government surveillance is more intrusive than ever. Obamaacting as
judge, jury, and executionerrecently proclaimed the power to
assassinate suspected terrorists around the world, including American
citizens. His administration, which promised a new era of transparency,
has charged more whistle-blowers for leaking classified information
under the Espionage Act than did all of its predecessors combined.
Outside the White House, Republican presidential candidates have
defended enhanced-interrogation techniques such as waterboarding, and
Mitt Romney even wants to double the size of the military-run prison at
Guantánamo. Congress, which once seemed poised to shutter it, has
instead passed bipartisan law after bipartisan law ensuring its
indefinite operation. The recent defense reauthorization, which Obama
signed, can be read to allow the unlimited military detention of
American civilians suspected of terrorism. And Americans continue to
worry enough about another terrorist attack that more of us than before
(68 percent in 2008; 71 percent last year, according to the Pew Research
Center) believe that torturing suspected terrorists can sometimes be
justified. Forty percent (down from 43 percent in 2006) still believe
that its necessary to give up civil liberties to curb terrorism.
Americans, it turns out, are still afraid.
After multiple elections, Republican and Democratic administrations
and Congresses, and a decade into the war against terrorists, no one can
plausibly argue that the bright, shining mirage that Obama conjured in
May 2009 reflects the country today. That United States was ready to
grapple with terrorism as a manageable policy problem, not a political
bludgeon. It was unafraid to prosecute terrorist suspects according to
legal norms. And it was willing to subject its policies to oversight,
checks, and balances. Weve had the debate, and that vision of America
lost. Thats not who we are anymore.
BIG BROTHER
Earlier generations would be astounded by the privacy intrusions that
Americans now tolerate. The government subjects citizens to full-body
pat-downs and revealing X-ray scans at the airport; it proliferates
cameras on city streets; and it scrutinizes phone calls and e-mails with
correspondents overseas. (To say nothing of private-sector rollbacks
such as the ubiquitous data collection practiced online.) The public
seems unfazed even by news that local police departments will
increasingly use surveillance drones.
Americans werent always so acquiescent. After the FBI and the CIA
spied on antiwar activists and civil-rights advocates in the 1960s and
1970s, Congress passed the Foreign Intelligence Surveillance Act,
requiring the government to seek warrants to monitor citizens private
communications. It was a simple line of defense against government
overreach.
The laws post-9/11 odyssey exemplifies
the retreat of privacy rights. In 2005,
The New York Times
revealed that President Bush had authorized the National Security
Agency to intercept, without warrants, the private communications of
millions of Americans. We know that a two-minute phone conversation
between somebody linked to al-Qaida here and an operative overseas could
lead directly to the loss of thousands of lives, Bush said in a news
conference defending the program and asking Congress to legalize it.
Rather than devise a process of rapid judicial review for such wiretaps,
Congress gave Bush the FISA Amendments Act of 2008. This bill codified
the governments power to tap Americans international communications
and even gave retroactive immunity to telecom companies that assisted in
the earlier warrantless taps.
As a senator, Obama opposed the bill, but he reversed course as
president, and his administration continues to fight a lawsuit by the
American Civil Liberties Union that challenges the FISA changes. Federal
law enforcement also adopted its own aggressive tactics to fight
terrorism. The FBI radically expanded its use of informants to ferret
out potential extremistsin some cases, by acting as agents provocateurs
and trolling mosques in search of possible terrorists. Its elaborate
stings ensnare terrorist wannabes whose dreams of jihad generally far
outstrip their competence until government informants appear to furnish
the means. (Somehow, not a single jury has seen this technique as
entrapment.) The New York City Police Department, too, recently admitted
to monitoring Muslim places of worship, based on no evidence of
wrongdoing.
Obama largely adopted the Bush administrations wartime legal
framework for his counterterrorism policies, which is why we have seen
significant continuity in areas such as warrantless wiretapping and
discriminatory surveillance, says Hina Shamsi, director of the ACLUs
National Security Project. Those are very dangerous powers, and if you
are willing to trust President Obama with them, you had better also be
willing to trust the next president and the president after that.
Because in a war that, as defined by the government, takes place
everywhere and potentially lasts forever, civil liberties will continue
to erode.
Although Obama championed transparency as a candidate, his
administration has also cracked down on leaks of classified information
to the press by whistle-blowers. It has prosecuted six such cases under
the Espionage Actmore than all previous administrations combined. In
one recent case, the Justice Department charged former CIA officer John
Kiriakou for revealing the name of an agent who waterboarded Qaida
suspect Abu Zubaydah. Civil libertarians had hoped that the White House
would prosecute the interrogators; instead, it is prosecuting the
suspected whistle-blower. President Obama has simply perpetuated the
secrecy regime put in place by the Bush administration, says Jesselyn
Radack, a former Justice Department ethics adviser who is director of
national security and human rights at the Government Accountability
Project. If Bush was still carrying out those practices, liberals and
progressives would be screaming in outrage about it. But they have
hardly uttered a blip of criticism of Obama. (The Justice Department
says that revealing the identity of agents jeopardizes their lives, and
that if prosecutions are more common than in the past, its because
e-mail and other digital clues leave a clearer trail.)
Once again, the public has responded with indifference. Americans
support for the Patriot Act, which authorized the government to collect
domestic intelligence, grew from 33 percent in 2004 to 42 percent last
year, according to Pew. In a September 2011 poll by the Associated
Press/NORC Center for Public Affairs Research, 70 percent of American
respondents favored the use of surveillance cameras, 48 percent favored
government monitoring of Internet searches without a warrant, and 49
percent favored warrantless wiretaps of phone calls made to individuals
outside the United States. (Only 23 percent favored warrantless wiretaps
of phone conversations inside the country.)
THE WEDGE ISSUE
Determined to fulfill a campaign pledge, Obama ordered, on his second
day in office, that Guantánamo prison must close within a year, even
though the administration didnt yet have a plan for how to accomplish
this goal. A former top Obama administration official who asked not to
be named said it was the rare case when a significant policy was decided
hastily by top-down edict, rather than by vetting through interagency
review. That made it easy for conservatives to paint the administration
as feckless and naive on national security. As former Vice President
Dick Cheney put it after Obamas National Archives speech, I think the
president will find, upon reflection, that to bring the worst of the
worst terrorists inside the United States would be cause for great
danger and regret in the years to come.
Instead of producing a rapid-action
plan, the administrations Guantánamo Review Task Force ran into a mess.
The Bush administration had set up Guantánamo primarily as an
interrogation site outside the reach of international or domestic law,
not as a place to prepare suspects for trial. Intelligence files on each
individual were spread across government agencies, and many were
grossly incomplete. Some interrogations were tainted by torture. The
Bush administration, under pressure from courts, had already released
more than 500 prisoners, so the 240 detainees who remained were the
toughest cases. The result is a hodgepodge of internally inconsistent
policies, an outsized role for the courts, and huge gaps in what the
public has been told, says Jane Harman of the Woodrow Wilson
International Center for Scholars, who served on the House Intelligence
Committee at the time.
As the task force bogged down in 2008, Obama made decisions that
belied the existence of bipartisan consensus for closing Guantánamo.
He angered the Right by releasing the torture memos in which Bush-era
officials justified enhanced interrogation, and he angered the Left by
refusing to investigate those officials or the interrogators. The fault
line was clear: In 2009, only 26 percent of Republicans approved of
Obamas decision to shut Guantánamo, while 76 percent of Democrats did,
according to Pew. In a 2008 poll, 83 percent of Republicans thought
torture was justified in some cases (60 percent of Democrats agreed).
Accordingly, Obamas political headwinds were strong. When Justice
moved in November 2009 to try Khalid Shaikh Mohammed, the 9/11
mastermind, in Manhattans federal District Court, New Yorkers led by
Mayor Michael Bloomberg (who had initially supported the plan) revolted.
A similar NIMBY spasm thwarted a move to build a supermax prison for
terrorism suspects in Illinois. Chicago could become ground zero for
jihadist plots warned then-Rep. Mark Kirk, R-Ill.
In retrospect, by the time Obama gave his season of fear speech, he
was already on the defensive. The day before, the Senate had voted 90-6
to bar the administration from transferring any detainees to the United
States, following a similarly lopsided vote in the
Democratic-controlled House a week earlier. It was the first of many
restrictions that Congress would impose in the months and years to
cometying the administrations hands not only in closing down
Guantánamo but also in releasing its prisoners, trying them in federal
courts, or transferring them to third countries.
Administration officials were surprised at how eager Republicans were
to use Guantánamo as a wedge issue, given that McCain had also promised
in 2008 to close it. Benjamin Wittes, a Brookings scholar who went on
to write Detention and Denial: The Case for Candor After Guantánamo,
warned early that it would be hard, for political reasons, to close the
prison. But almost no one anticipated that there would be a huge,
bipartisan majority in Congress united behind the proposition that it
should remain open indefinitely and the detainees there should be tried
in military commissions, he says. It turns out that the American
people dont like the detainees very much, and theres much more public
support for those who want to keep Guantánamo open. That really rocked
the Obama administration back on its heels.
Unable to fulfill his campaign pledge, Obama has focused on improving
the prison, reforming military commissions, and directing new suspects
toward the federal courts (which have notched more than 400 terrorism
convictions since 9/11, compared with just seven in military
commissions). The 2009 Military Commissions Reform Act narrowed the
differences between federal trials and commissions, for instance, by
shifting the burden of proof for hearsay evidence from the accused to
the government; it also barred evidence gathered from torture. The
upcoming trial of Mohammed and his cohorts at Guantánamo will test the
new standards.
In this election cycle, Obama rarely mentions Gitmo on the campaign
trail; he has ceded that ground to Republicans. Meanwhile, the nation
has set a precedent for treatment of captives that may haunt U.S. troops
in the future, according to retired Col. Morris Davis, a former
Guantánamo prosecutor who resigned in protest in 2007 over pressure from
Bush administration appointees to use evidence gathered during enhanced
interrogations. The American public continues to buy into the false
narrative that the detainees remaining at Guantánamo represent the
worst of the worst, whereas Ive seen, personally, that description
only applies to a significant minority of detainees, he says. We
listened to the fearmongers and turned our backs on the law, and weve
been running ever since.
JUDGE, JURY, EXECUTIONER
If civil-rights advocates were disillusioned about Guantánamo,
theyre incensed by the administrations attitude toward due process.
They hear echoes of Bush in the policy of indefinite, preventive
detention for prisoners who cant be tried even in military commissions
(for lack of reliable or untainted evidence) but who are considered too
dangerous to release. They hear those echoes, too, in Obamas decision
not to investigate CIA interrogatorsmeaning that hell forgo the
possibility of a legal precedent holding that enhanced interrogation
is torture, paving the way for future administrations to use it.
Civil libertarians are most
disturbed, however, by the administrations expansion of a program
through which the United States kills suspected terrorists around the
worldeven Americans such as Anwar al-Awlaki, who was targeted last year
in Yemen. In a March 5 speech reacting to those concerns, Attorney
General Eric Holder went further than any previous government official
in justifying a government assassination program so secretive that
administration officials generally refuse to even acknowledge it in
public. Holder argued that such attacks are justified only to counter an
imminent threat of violent attack, but he said that the
Constitutions guarantee of due process did not apply and that
American citizens were therefore not exempt.
President Obama has gone from taking torture off the table on his
first day in office to claiming the power to secretly identify an
American citizen as a suspected terrorist and authorize his killing,
says Karen Greenberg, director of the Center for National Security at
Fordham University. Without oversight, she said, the category of whom
can be targeted will almost certainly swell. At one point, the Pentagon
expanded its classified capture or kill mandate to include Afghan drug
dealers. And the CIA recently sought authority to kill targets in Yemen
based solely on intelligence indicating patterns of suspicious
behavior, according to The Washington Post. The public
doesnt seem to care, said Greenberg, who notes that American juries
seem unable even to assume innocence in terrorism cases. They will
almost never risk letting someone go free if the government says they
are terrorists. Thats how your civil rights disappear over time.
Whats more, those changes are getting locked in place. Both
Presidents Bush and Obama have successfully adopted an argument that we
are in a state of perpetual war that requires presidential authority to
remain largely unchecked and unlimited, says Jonathan Turley, a
constitutional law professor at George Washington University. And they
have both used that authority to justify a great array of abuses that
range from the torture of prisoners to the killing of American citizens
by their own government without charge or trial. Thats the very
definition of authoritarian power, and it legitimizes the actions of the
most tyrannical regimes on earth.
ACQUIESCENCE
The Obama administration can reasonably argue that it abolished
torture and would have closed Guantánamo had Congress assented.
Democrats can explain their general silence on the retreat of civil
liberties with the need to protect the right flank of their president.
Republicans, meanwhile, can claim credit for helping keep the balance
between civil liberties and national security weighted toward the
latter. The Supreme Court can say it gave habeas corpus rights to
detainees (although lower courts have greatly diluted the protection by
easing the governments burden of proof). The American people can take
comfort in the fact that there has been no major terrorist attack since
Sept. 11, 2001. But how did we go from a bipartisan consensus to restore
civil liberties in 2008 to a full retreat before the juggernaut of
intrusive government powers?
In retrospect, civil libertarians read more into Obamas rhetoric
about restoring the rule of law than he actually promised (or was able
to deliver). Democrats almost certainly underestimated the popular
resonance of Cheneys argument that in the fight against terrorism
there is no middle ground, and half-measures leave you half exposed.
They failed to anticipate how quickly talk radio, cable television, and
24/7 media can amplify and distort such fears.
Theres also the matter of unlucky timing. In Obamas first years, a
series of high-profile terrorist plots reawakened memories of 9/11:
Najibullah Zazis plan to blow up New York City subways;
Farouk
Abdulmutallabs attempt to bring down an airliner over Detroit; and
Faisal Shahzads scheme to bomb Times Square.
By the time Holder
proposed to try Mohammed in a New York federal court, the backlash of
fear had already begun. The administration was forced into a full
retreat from which it never fully recovered.
Finally, Obamas tough approach to counterterrorism has played well,
reversing the GOPs long dominance on national-security issues. In an
ABC News/Washington Post poll in February, 56 percent of respondents said
that Obamas record on terrorism is a major reason to support him. A
Washington Post
poll the same month found that 83 percent of Americans approved of the
use of drone aircraft against terrorist suspects overseas, 65 percent
supported the use of drones to target suspected American terrorists
living abroad, and 70 percent approved of keeping open the prison at
Guantánamo Bay for terrorist suspects.
Yet it is also increasingly clear that what makes this period almost
uniquely dangerous in the nations history is the hybrid nature (part
criminal, part military) and endless horizon of the conflict. Some Qaida
suspects are given Miranda rights and charged under criminal statutes
in federal courts. Others are held in a military prison and prosecuted
by military commissions. Still others get blown apart far from any
acknowledged battlefield, all under our current laws of warfare. With
the two legal regimes routinely conflated, its no wonder that the
public is confused about what accords with American principles.
The length of the conflict compounds the problem. The government
almost always expands its power in moments of great crisis, and civil
liberties sharply decline, Turley says. Whats different today is that
Americans have over time been lolled into a deep sleep of passivity.
He believes that the Framers would have been shocked to hear Holder tell
his fellow citizens that the president has the right to kill any one of
them on his own authoritylet alone to hear it met by applause. The
danger is not just that our laws have changed to an unprecedented degree
since 9/11, Turley says. We appear to have changed as citizens.
The lack of any definable end to the threat forestalls the
self-correcting cycle that followed past wars and crises, when
civil-liberties abusesthe internment of Japanese-Americans during World
War II, for instancewere reexamined and reversed. In an endless
conflict, the exigencies of war get embedded not only in statutory and
legal structures, but also in the consciousness of the American people.
This article appeared in the
Saturday, April 28, 2012
edition of National Journal.
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