Obama and Civil Liberties: The Prospect of Four More Years

originally published at The Beacon

Most voters prioritize the economy and far behind that comes foreign policy, where both major presidential candidates offer more of the same. One can make arguments that on these important issues, one side is worse than the other. But another important set of issues, those of civil liberties, has gotten much less attention than jobs, health care, or war. This is unfortunate because precedents set today on questions of law enforcement, presidential power, detention policy, surveillance, and the relationship between national-security approaches and due process will forever affect the character of American political culture and its governing institutions. In the very long term, civil liberties issues are as important as any, and in the very short term, they often mean life or death, torture or humane treatment, imprisonment or freedom, for flesh-and-blood individuals.

Focusing on civil liberties issues, one could make a strong case that a second Obama term would be even worse than a Romney presidency. This prospect hinges on two basic factors: what Obama has done so far in the areas of civil liberties, and, just as important, what Obama has done to national discourse.

In practice, Obama has for the most part solidified Bush’s extremist detention policies and in some respects gone further. He did officially repudiate torture, but with enough loopholes that the abuses have continued – the beatings and forced feedings at Guantánamo and limited use of renditioning and black sites. The ad hoc Bush policy of indefinite detention became formalized by Obama in May 2009 whe he unveiled his new doctrine of “prolonged detention,” and was codified, even for American citizens, in the NDAA he signed this last New Year’s eve.

Obama never closed Guantánamo, of course, and he is lying when he says he tried his best, and his followers are foolish or disingenuous to repeat this White House propaganda. Obama could have closed it by executive order, just as Bush created it through executive fiat. And no one forced Obama to block the release of prisoners his administration and the courts already cleared as non-threatening persons. The president’s original plan, incidentally, to move the prisoners to the mid-West, was not actually an improvement, for it would have only implanted the Alice-in-Wonderland standards of Gitmo justice here within the United States. What’s more, Obama rounded up thousands—even more than Bush ever put in Guantánamo—and put them in the prison facility at Bagram, where due process rights were even worse than at Guantánamo under Bush, and where a federal judge’s attempt to extend habeas corpus rights was challenged by the administration. In his first military commission, Obama put a child soldier on trial for the “war crime” of fighting against an invading army—an international disgrace.

Warrantless wiretapping? It has been vastly expanded. The tyrannical state secrets doctrine? Obama has given Bush a run for his money. The war on whistleblowers? It has been stepped up.

Then of course there is Obama’s “kill list”—a Bush-like legal theory that the Obama administration has frighteningly and explicitly articulated: the presumption that the president, on his say-so alone, can order the death of any person, even an American citizen, and this his deliberation over the decision alone constitutes “due process.”

Bush’s other obnoxious and ludicrous invasions of person and property in the name of stopping terror, like the TSA, have only gotten worse, as have the FBI crackdowns of peaceful political dissidents. On the Patriot Act and the claimed authority of the president to start wars completely unilaterally, the Obama administration has proven at least as bad as the Republicans.

Then we can consider the more mundane civil liberties issues that are not as directly connected to the war on terrorism. The militarization of police and the use of drones domestically have accelerated. As it concerns immigration, Obama has deported undocumented workers at a far faster rate than Bush—over a thousand per day—and the percentage who have no criminal record has actually risen on his watch. On the drug war, Obama violated an easy campaign promise, one that even most Republicans could get behind—ceasing the federal raids of medical marijuana dispensaries where states allow them to legally operate. Under Obama,the raids have escalated by a factor of eight.

All the while, Obama’s defenders claim that these injustices occur despite Obama’s best of intentions, not because of his direct action. He’s just the president; he can’t make law on his own, we are told.

This is all a bunch of hogwash. The president is supposedly limited by the Constitution, but this has never stopped Obama or past presidents from acting unilaterally on a whole host of issues. If Obama can slightly reform immigration by executive order, as he did several months ago, he could easily go further. He could order that the marijuana raids stop. He could pardon medical marijuana patients convicted of federal crimes. He could close Guantánamo—instead he issues orders that make conditions worse for the detainees there. At a minimum, Obama could refrain from blocking the release of innocent people.

The craven apologia we get from Obama’s partisans speak to the second reason the Democrat might be worse than the Republican on these issues—Obama has marginalized civil libertarians in this country, and made the mainstream left stop prioritizing these issues. We saw this with the progressive bloggers who stopped prioritizing the war on terrorism and started focusing on health care in 2009. We saw this with the Democratic National Convention, which abandoned civil liberties issues from its platform this year.

The overall climate has gotten much worse on these issues. When the current president took office, the American people were tired of Bush’s fearmongering. The calls to close Guantánamo sounded on both sides of the mainstream spectrum. In 2009, polls indicated that 68% of Americans opposed indefinite detention.Similar polls revealed widespread opposition to torture.

Under Obama, who has signed off on so many Bush-era violations of civil liberties, public opinion has shifted for the worse. Americans favor torture by far higher margins than throughout the Bush years. Then there was the Washington Post poll released early this year:

The survey shows that 70 percent of respondents approve of Obama’s decision to keep open the prison at Guantanamo Bay. . . . The poll shows that 53 percent of self-identified liberal Democrats — and 67 percent of moderate or conservative Democrats — support keeping Guantanamo Bay open, even though it emerged as a symbol of the post-Sept. 11 national security policies of George W. Bush, which many liberals bitterly opposed.

Left-liberals who have decided that innocent people locked in Obama’s dungeons don’t count as much as beating the Republicans deserve some of the blame, but so do the conservatives who disingenuously or perhaps just ignorantly attack Obama for doing the opposite of what he’s actually done. They say he’s coddling terrorists with due process and being weak on illegal immigrants. None of this is true at all, and the conservatives’ ideological support for the police state will be a problem no matter who is president.

But the left-liberals have dropped the ball totally, and many have become apologists for the worst Bush-era excesses. When populist anger about the TSA rose, far too many progressives saw it as Tea Party opportunism and so sided with the administration. When Obama suggested a show trial for Khalid-Sheikh Muhammed in New York, too many progressives defended this as though it would be substantially more just than the show trials at Guantánamo. When Obama blamed the out-of-power right or his comrades in Congress for keeping Guantánamo open, too many lefties have gone along with this obviously dishonest excuse.

All modern presidents have been terrible on civil liberties. But Obama has done as much to build on his predecessor’s awful record as Bush did to build upon Clinton’s. Meanwhile, these issues of human rights have become non-issues, because left-liberals would rather defend Obama’s presumably great domestic economic policies than criticize him for his kill list, kangaroo courts, and dungeons.

Mitt “double Guantánamo” Romney has no apparent philosophical objection to the Bush-Obama police state, to militarized law enforcement, to a president with truly despotic authority. Neither does Obama. Romney could very well prove to be worse in practice, but at least he’d run the risk of people noticing. At least the debate over civil liberties would return. At least half the country would no longer see the arrest of sick marijuana patients, the mass deportation of poor migrants, the targeted summary execution of American citizens, and the torture of whistleblowers as unfortunate but necessary evils for which the president only deserves some blame. Instead, the blame would fall directly where it belongs: on the man sitting in the Oval Office.

I could never recommend supporting Romney, who I think would take this country further down the path of deficit spending, corporatism, fiscal insanity, militarism, and Big Brotherism. But I think anyone concerned about civil liberties in particular should refuse to support the continuation of the current regime. Progressives concerned about the future of their party should be especially cautious. The Democrats will permanently be the party of the kill list and indefinite detention if Obama wins this referendum.