Wednesday, January 19, 2011

President Obama "Vindicating" Bush/Cheney Lawlessness

As I've written in excruciating detail about on this blog, the Obama Administration has been a complete disappointment on issues related to privacy and civil liberties. To be sure, I never expected his actions as President to fully match his words as a candidate - this is rarely EVER the case, particularly when it comes to issues related to national security - but the two seem to have diverged to such a degree that they now represent diametrically opposed worldviews.

Recently however, it’s gotten even worse. Before I get to my usual listing of all the flip flops and sell outs, let’s go to exhibit A, the overwhelming approval his “war on terror” is getting from some of the most notorious criminals from the Bush Administration:

Vice President Dick Cheney, perhaps the Constitution and privacy’s worst enemy since the FBI's Hoover or the Senate's Joe McCarthy, recently said Obama has "learned from experience" that Bush administration terror policies were necessary and correct, stating, "I think he's learned that what we did was far more appropriate than he ever gave us credit for while he was a candidate.”

Last October, former Bush NSA and CIA Chief Michael Hayden, whose confirmation as CIA Chief was opposed by then-Sen. Obama on the ground he had overseen the illegal NSA spying program said "there's been a powerful continuity between the 43rd and the 44th president." 

James Jay Carafano, a homeland-security expert at the Heritage Foundation, told The New York Times' Peter Baker last January: "I don’t think it's even fair to call it Bush Lite.  It's Bush.  It's really, really hard to find a difference that's meaningful and not atmospheric."

I can’t really dispute any of these statements, and nor even is the kinds of rabid right wingers that still view the Patriot Act as a great achievement, rather than the historic tragedy that it is, and will continue to, represent.

As I wrote in a past post on this topic, “Sadly, what has become an ironclad, and increasingly dangerous "rule of thumb" in this country, is that once a power is taken by the government (i.e. Patriot Act), or a civil liberty/constitutional protection erased, its gone...NO President, anymore anyway, once elected offers to "give" up power seized by the President (s) before him. And boy oh boy has this remained true between the privacy eviscerating Administration of George W. Bush and that of President Barack Obama.”

The list of evidence of this Bush-Obama continuity is approaching miles in length now. To save time and space, I will try and just focus on privacy specific policies, rather than the more all encompassing list of civil liberties violations (i.e. torture, indefinite detention, drone attacks, etc.) the President has also continued unabated. 

And don’t just take Cheney or my word for it (I shudder at the prospect of agreeing with that man about anything), the Electronic Privacy Information Center (EPIC) recently released its own Privacy Report Card for President Obama, giving the Administration a grade of C in Consumer Privacy, B in Medical Privacy, D in Civil Liberties, and B in Cybersecurity. I suspect due to some recent stands taken, both the consumer and cybersecurity grades will be lower next time around.

Before I get to Glenn Greenwald’s expert, disturbing, and spot on arguments for why Obama is serving to both codify Bush/Cheney policies as “mainstream” as well as vindicate their lawlessness, let me run down a bit more of the President’s privacy related disappointments and even betrayals.

We all know by now the Administration's whole-hearted embrace of airport body scanners. As we also now know, both Obama and Holder have completely reversed themselves on the issue of warrantless wiretapping, by not only refusing to prosecute or investigate the program and/or those that carried it out, but have even expanded their defense of it in some important key respects. 

Telecom immunity? You bet. Justice for those spied on? Hell no.

We also now KNOW that it was President Obama himself that worked behind the scenes to ensure that absolutely no meaningful reforms to the Patriot Act were adopted...essentially a complete reversal of his positions as a Senator and Presidential candidate. 

Remember, Senator Obama branded the Patriot Act "shoddy and dangerous" and pledged to end it in 2003. In 2005, he pledged to filibuster a Bush-sponsored bill that included several of these exact components recently extended, calling them "just plain wrong" in a Senate speech. 

Here are some of the Patriot Act greatest hits that have now been vigorously renewed, and supported, by this Administration:

Business and citizens groups can still have their records examined by the government with minimal checks on how the information can be used and more particularly used against. Individuals often based on flimsiest of evidence can still be targeted for monitoring and surveillance if suspected of being a potential terrorist.

Organizations and individuals can still be slapped with so-called roving wiretaps (taps that can be placed on an individual or group anywhere, anytime) again based on weak evidence or unfounded suspicion....

FISA can order court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist was also approved.

Then there was the Administration's radical interpretation and use of the "state secrets" privilege

Obama is also now backing a bill that would require all Internet companies to be able to tap into any online communications that they enable.

The Department Of Justice has been pressuring Congress to expand its power to obtain records of Americans' private Internet activity through the use of National Security Letters (NSLs).

Taken together it’s hard to come to any other conclusion except that with each administration the surveillance state expands, and the Executive Branch gains more power, if not over legislation, than assuredly over national security related polices, particularly those that endanger privacy.

This continuity extends beyond specific policies into the underlying sloganeering mentality in which they're based:  we're in a Global War; the whole Earth is the Battlefield; the Terrorists want to kill us because they're intrinsically Evil (not in reaction to anything we do); we're justified in doing anything and everything to eradicate Them, the President's overarching obligation (contrary to his Constitutional oath) is to keep us Safe; this should all be kept secret from us; we can't be bothered with obsolete dogma like Due Process and Warrants, etc. etc. Aside from the repressiveness of the policies themselves, there are three highly significant and enduring harms from Obama's behavior.

First, it creates the impression that Republicans were right all along in the Bush-era War on Terror debates and Democratic critics were wrong.  The same theme is constantly sounded by conservatives who point out Obama's continuation of these policies:  that he criticized those policies as a candidate out of ignorance and partisan advantage, but once he became President, he realized they were right as a result of accessing the relevant classified information and needing to keep the country safe from the Terrorist threat.  Goldsmith, for instance, claimed Obama changed his mind about these matters "after absorbing the classified intelligence and considering the various options."  Susan Collins told the NYT's Baker that Obama "is finding that many of those policies were better-thought-out than they realized."  Cheney boasted that Obama "obviously has been through the fires of becoming President and having to make decisions and live with the consequences."  This has settled in as orthodoxy:  one could criticize Bush/Cheney Terrorism policies only out of ignorance and/or being free of the obligation to Keep America Safe.

Second, Obama has single-handedly eliminated virtually all mainstream debate over these War on Terror policies.  At least during the Bush years, we had one party which steadfastly supported them but one party which claimed (albeit not very persuasively) to vehemently oppose them.  At least there was a pretense of vigorous debate over their legality, morality, efficacy, and compatibility with our national values. Those debates are no more.  Even the hardest-core right-wing polemicists -- Gen. Hayden, the Heritage Foundation, Dick Cheney -- now praise Obama's actions in these areas.  Opposition from national Democrats has faded away to almost complete nonexistence now that it's a Democratic President doing these things.  What was once viewed as the signature of Bush/Cheney radicalism is now official, bipartisan Washington consensus: the policies equally of both parties and all Serious people.  Thanks to Barack Obama, this architecture is firmly embedded in place and invulnerable to meaningful political challenge.

Third, Obama's embrace of these policies has completely rehabilitated the reputations and standing of the Bush officials responsible for them.  Yesterday, J. Gerald Herbert -- a long-time DOJ official -- told The Raw Story that Obama's refusal to investigate or prosecute Bush era crimes is both a violation of DOJ's duties and sets a "dangerous precedent" by vesting lawbreaking elites with immunity.  The active protection of torturers and other high-level lawbreakers both signals that they did nothing seriously wrong and, independently, ensures that such conduct will be repeated it in the future.  But Obama's impact in this area extends far beyond that.

Dick Cheney is not only free of ignominy, but can run around claiming vindication from Obama's actions because he's right.  The American Right constantly said during the Bush years that any President who knew what Bush knew and was faced with the duty of keeping the country safe would do the same thing. Obama has provided the best possible evidence imaginable to prove those claims true. Conservatives would love to bash Obama for being weak on Terrorism so that, in the event of another attack, they can blame him (and Cheney, in last night's interview, left open that possibility by suggesting Obama may suffer from unknown failures). But they cannot with a straight face claim that Obama has abandoned their core approach, so they do the only thing they can do: acknowledge that he has continued and strengthened it and point out that it proves they were right -- and he was wrong -- all along. If Obama has indeed changed his mind over the last two years as a result of all the Secret Scary Things he's seen as President, then I genuinely believe that he and the Democratic Party owes a heartfelt, public apology to Bush, Cheney and the GOP for all the harsh insults they spewed about them for years based on policies that they are now themselves aggressively continuing. 
Fear always seems to make for a more persuasive argument these days, no matter how ludicrous or exaggerated. In contrast, arguments in defense of privacy in the face of that fear are becoming increasingly ineffective. As I also concluded in a past post, and worth repeating today: "I find it particularly dismaying that the tables have been so turned that the onus (and derision) has been placed on those that simply believe the government, or corporate America for that matter, should not have access to everything we do, particularly when we have committed no crime.

Now we must prove that whatever the latest power the government seeks to enshrine as law won't stop an attack (and if we can't prove this negative, we are endangering Americans!) or how it could specifically harm us...rather than the onus being on those seeking to circumvent our privacy and rights in the name of "national security."

If we can all go back in time for a minute, and remember those dark days of the Bush Administration (i.e. all of them), we should also remember the consistent, vehement, and vocal opposition from the left of Bush assaults on privacy and the constitution, from eavesdropping, to indefinite detention, to state secrets, to the Patriot Act abuses, and so, and so forth.

This vehement opposition was of course warranted, and important. But now that Obama is President, and CONTINUING THESE POLICIES, the same outcry that once existed has become a whimper. No, I'm not talking about groups like the ACLU or EFF, but certainly Democrats in Congress, left wing talk radio, and even newspaper editorial boards.

And why is this silence so damaging? Because a so called "liberal" President, a constitutional scholar no less, has now codified what just a few years ago were rightly considered radical attacks on the Constitution and Rule of Law. Now those very same policies have not only been embraced by the new President, but has been accepted by the Democrats in Congress!! In other words, the ball has just moved WAY towards the neoconservative worldview, and their interpretation of an all powerful Executive Branch.

The idea that because Obama is more intelligent, measured, and schooled in constitutional law than Bush (all of which is true), that this somehow means we should entrust him with such powers, be it wiretapping, assassination of American citizens, or indefinite detention, is patently absurd. Even if it were true that he would use these powers wisely (which is impossible), what's to say the next President will too?"

Or, as Greenwald concludes, "Obama has won the War on Terror debate -- for the American Right.  And as Dick Cheney's interview last night demonstrates, they're every bit as appreciative as they should be."

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