Obama, Bush, and the “New Normal”

The president and his national security team might want to know a bit more about what you are doing on the internet, just to be safe! As a recent Washington Post story notes:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

While portrayed as a “technical clarification,” the request has touched off a firestorm among civil liberties and privacy advocates. A former Justice Deparment lawyer under Bill Clinton exlained that the change would be “bringing a big category of data — records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information — outside of judicial review.” A lawyer with the Electronic Frontier Foundation says that their “biggest concern is that an expanded NSL [national security letter] power might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded.” According to Raw Story, “Internet attorney Marc Zwillinger even speculated that it might give the government access to social networking activity. ‘A Facebook friend request — is that like a phone call or an e-mail?’ he asked. ‘Is that something they would sweep in under an NSL? They certainly aren’t getting that now.’”

This most recent controversy is part of a much larger pattern. An important new report by the American Civil Liberties Union (described in a press release here) provides us with a full briefing on “National Security, Civil Liberties, and Human Rights Under the Obama Administration.” It worries about a “New Normal” where policies begun under Bush and continued (or even expanded) under Obama become standard operating procedure for the executive branch. The ACLU report (PDF) is about 20 pages and is worth reading in full but I’ve summarized it below, breaking it down into the key “positive” and “negative” elements.

Positives

  • Some improvements in transparency, for example better rules governing classification, appointing a Freedom of Information Act (FOIA) ombudsman, and releasing the Department of Justice memos that formed the basis for Bush’s policy on torture.
  • Disavowal of torture, Geneva Conventions protection to be granted prisoners held by the U.S.
  • Have not denied visas to foreign scholars and writers the U.S. government might not care for, as Bush did.

Bagram Air Base in Afghanistan, a second Guantánamo.

Negatives

  • Transparency: refusal to release photos of detainee abuse as ordered by an appellate court and support for an amendment to FOIA to bolster that refusal; refusal to release numerous documents that would cast further light on the Bush torture regime; releasing fewer documents relating to prisoners held in Bagram Air Base in Afghanistan than the Bush administration did for prisoners in Guantánamo; aggressive pursuit of government whistleblowers.
  • Accountability: no push for accountability for Bush administration officials who created the torture policy and indeed invocation of the state secrets doctrine to avoid releasing documents (Obama does not want to “look back”), no sympathy (much less support) for those who were tortured and are now seeking justice, most notoriously in the case of Maher Arar.
  • Failure to close Guantánamo, but more importantly embrace of “the theory underlying the Guantánamo detention regime: that the Executive Branch can detain militarily—without charge or trial—terrorism suspects captured far from a conventional battlefield.” Bagram in Afghanistan and/or a prison in Illinois might well become (or actually already be, in the case of the former) the new Guantánamo.
  • Authorization of targeted killing of suspected terrorists (including American citizens) outside of war zones.
  • Embrace of military commission trials (with some modifications) that Obama had previously decried.
  • “With limited exceptions, the Obama administration’s positions on national security issues relating to speech and surveillance have mirrored those taken by the Bush administration in its second term.”  Basically Obama has fully supported the assertion of the Bush administration that it’s fine to spy on Americans when the government deems it necessary for national security, and there’s nothing American citizens who are spied on can do about it.
  • Expanded use of terrorist “watch lists,” including the addition of thousands of names to the notorious (and highly inaccurate) “No Fly List.” As the ACLU notes, in a passage that reminds one of Kafka’s The Trial, “Individuals on the [No Fly] list are not told why they are on the list and thus have no meaningful opportunity to object or to rebut the government’s allegations.”

The ACLU is at pains to emphasize that the Obama administration made some genuinely positive steps soon after taking office, though they are clearly outnumbered by the negatives. Overall they cast their report as an effort to persuade the administration to right its course and turn away from what Dick Cheney literally called the “dark side.” There are few encouraging signs though in terms of a change of direction, and assuming that continues to be the case the ACLU’s conclusion about the future is bracing:

if the Obama administration does not effect a fundamental break with the Bush administration’s policies on detention, accountability, and other issues, but instead creates a lasting legal architecture in support of those policies, then it will have ratified, rather than rejected, the dangerous notion that America is in a permanent state of emergency and that core liberties must be surrendered forever.

And there’s the rub. It was bad enough when the Bush administration was raging open warfare on the constitution, our international treaty obligations, and the basic rights of Americans, but what does it mean when an ostensibly “liberal” president puts his stamp of approval on that same approach? What future president, of either party, would ever attempt to rein in policies that aggrandize the power of the executive and which were okayed by two presidents who supposedly could not be more different?

Unlike health care, financial reform, or any other aspect of policy that requires a difficult legislative path, Obama had a fair amount of authority to chart his own course when it came to issues of executive authority. He largely has not done so, instead choosing to hew fairly close to the path of his predecessor, albeit with some notable and important exceptions. Back in late 2007 candidate Obama articulated quite different views on many of these questions during a Q & A, and I find myself wishing that fellow was sitting in the Oval Office right now. As Kevin Drum remarked in reference to the request for more info on our internet activity, “You know, if I’d wanted Dick Cheney as president I would have just voted for him.”

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