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President Obama vs. his administration’s legacy

9:34 am in Uncategorized by Shahid Buttar

President Obama’s speech yesterday, presenting his vision of a comprehensive counter-terrorism strategy, included welcome rhetoric about the importance of constitutional principles, including Due Process and rights to dissent. It may represent the high watermark for civil liberties since his inauguration five years ago.

It is disappointing, given his thoughtful words, that he ignored so many inconvenient truths. From extrajudicial assassination to free speech and freedom of the press, from the need to address root causes of terrorism to partnership with American Muslims, the president promoted important principles but papered over reality.

The reaction by Republican senators was even worse. Senator Saxby Chambliss (R-GA) foolishly suggested that “The president’s speech today will be viewed by terrorists as a victory,” and suggested doubling down on many of the same failed Bush-era policies from which President Obama finally signaled long overdue independence yesterday.

Due Process: Gitmo

The president forcefully spoke about the need to close Guantánamo Bay, and also lifted his moratorium on releasing Yemeni detainees whom the government has cleared for release, despite the clamor among conservative lawmakers who prefer to indefinitely detain anyone accused of terror without trial.

Yet the president’s words reflected important principles that his own administration has routinely violated. Col. Morris D. Davis, the former chief military prosecutor at Guantánamo who resigned his position to challenge torture (and serves on the BORDC advisory board), agreed that “It’s great rhetoric. But now is the reality going to live up to the rhetoric?”

The president criticized restrictions on resettling detainees cleared for release imposed by Congress early in his administration. But he has the authority to resettle those detainees through a separate process, if he were willing to certify the release of particular individuals—which he has avoided in order to avoid the political risk.

Due Process: Drone strikes

President Obama also pledged more congressional oversight of drone strikes, responding to sustained controversy and reiterating a promise from his State of the Union address in January that he has yet to fill.
Noting the 2014 drawdown of US troops in Afghanistan, he also suggested the diminishing need for force protection. That, in turn, could lead to a reduction in “signature strikes,” untethered attacks in which the CIA essentially kills at random based on nothing more than suspicious activity and inflames anti-US sentiment. If nothing else, the president explained a preference to shift drone strikes from the unaccountable and secret CIA to the (also secret, though at least somewhat accountable) Pentagon.

Most importantly, the president acknowledged for the first time in public that civilian casualties—which he predictably downplayed—run the risk of creating new enemies.

On the one hand, he claimed that drone strikes are less lethal, and less prone to civilian casualties, than conventional warfare.

On the other hand, according to an independent study, only 5% of deaths from drone strikes were actually senior terror leaders, suggesting that what the press conveniently calls “targeted killings” are in fact essentially random. Signature strikes, in particular, reveal the rose tint in the president glasses: these are the antithesis of targeted killings, but rather knee-jerk assassinations based on mere suspicion. The CIA often doesn’t even know who it kills, let alone whether they are actually involved in terrorism.

Perhaps most revealing were the president’s comments about assassinating US citizens without trial. This particular subject sparked widespread controversy earlier this year, when Senator Rand Paul (R-KY) mounted a filibuster specifically to force the administration to resign the authority to kill Americans at home using drones.

Now, as then, the response is rhetorically welcome but substantively empty. Just as Attorney General Eric Holder’s letter to Sen. Paul made promises that ultimately appear implausible in light of the actual facts, President Obama’s assurances that drone strikes are closely targeted belies the competing fact that four US citizens have died in drone strikes, while only one was reportedly targeted. If the CIA has killed four times the number of US citizens than it has intended, how can we maintain the pretense that drone strikes avoid collateral casualties?

At root is a surprising willingness to redefine Due Process to exclude a right to judicial review. A canard—that the executive branch can provide Due Process without judicial review—pervades the drone program. But that view makes a mockery of over 800 years of legal precedent establishing the need for judges to check and balance executive detention orders. For a constitutional law professor to advance so revolutionary claim should disturb any observer, regardless of political perspective.

The First Amendment: freedom of the press

President Obama also reiterated his recent call for a reporter shield law to enable the press to do its job without interference from prosecutors. This suggestion lends itself to criticism on the grounds of both hypocrisy and insufficiency.

A reporter shield law is important, but the president’s speech ignored both his own administration’s attacks on the press (which he needed no legislation to have curtailed), as well as its vindictive, predatory, and authoritarian crackdown on government whistleblowers (like Thomas Drake, or Bradley Manning, or John Kiriakou) who have resigned their careers to inform the public about government abuses.

The First Amendment: rights to dissent, assembly, and speech

President Obama also recognized that the ham-fisted security measures for which he and his predecessor are both known run the risk of “alter[ing] our country in troubling ways,” before pledging a “proud commitment to civil liberties for all who call America home.”

As a seeming illustration, he allowed an extended (and quite thoughtful) interruption from the audience, noting that the opportunity for a citizen to challenge her president reflects the vitality of liberty in America.

But his rhetorical respect for dissent stands in sharp contrast with the actual actions of federal agencies. Recent investigations have documented a vicious crackdown on dissent executed by the FBI, in partnership with police agencies around the country, to violently suppress the Occupy and peace movements.

At the same time, the IRS was discriminatorily auditing conservative groups, as well as transpartisan constitutionalist groups, including the organization I lead, the Bill of Rights Defense Committee.

Letting a heckler interrupt a speech is no substitute for respecting the public’s rights to assembly, speech, and the press. Words are welcome, but they are far from enough.

Praising American Muslims while abusing us

President Obama’s comments regarding American Muslims were also welcome, but again, ignored the harsh reality on the ground.

He reiterated that the US is not at war with Islam, praised the support of American Muslims for US counterterrorism operations, and indeed, play a key role in winning the battle for hearts & minds abroad. He even reminded listeners that terrorism in America has been instigated by anti-government Christians more often than by Muslims.

Yet during the president’s tenure, the FBI has infiltrated mosques around the country, lied to communities—and courts—about it, recorded sexual encounters to enable blackmail, and bribed unsophisticated Muslims of all races into government-initiated plots in order to inflate both its own institutional reputation and the threat of domestic terrorism (while conspicuously ignoring real plots, like the Boston marathon bombings).

Restoring First Amendment rights—for the press, dissidents, and religious minorities—will require wide-ranging changes at the FBI that few in Washington have discussed.

Real counter-terrorism

Perhaps most remarkably, the president explained that “Force alone cannot make us safe,” before noting the overwhelming and untenable costs of war, and the greater opportunity to achieve lasting security by winning not just battlefields, but also hearts & minds.

But the president—like his predecessor—has long ignored many of those opportunities. On the one hand, he explained how building roads, schools, and hospitals can undermine terrorist recruitment, in sharp contrast to the torture and drone strikes that encourage it.

But giving weapons to dictators, protecting American textile manufactures through discriminatory tariffs, enabling terror networks to fund themselves through the black market opportunities created by the failed war on drugs, and destabilizing global food markets by encouraging domestic agricultural overproduction through corporate subsidies, all play an enormous roles in enabling terrorism. Yet none of these subjects are even discussed in these terms in Washington.

If his rhetoric matched reality, the president’s speech would have been world historical, repudiating a decade of lawlessness and restoring the best in America. And it was excellent, even if occasionally duplicitous. The question now is whether it was anything more than words, and whether the Administration will convert the president’s welcome rhetoric into long overdue action.

That, in turn, depends in part on whether Congress grows more assertive in asserting its checks & balances on executive power. Fortunately, we can each encourage that result.

Will Obama’s second term finally fulfill his 2008 promises? (Part I)

5:37 pm in Uncategorized by Shahid Buttar

This article was originally published on the People’s Blog for the Constitution and is the first in a forthcoming series articulating specific civil liberties recommendations for the second Obama administration.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Unlike Obama, Bush & Cheney never asserted the authority to kill US citizens based on their speech.

Unlike Obama, Bush & Cheney never signed into a law a statute granting the military the power to detain any American without evidence or proof of crime.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide  that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

The Obama administration’s prosecution of whistleblowers who sacrifice their jobs to defend the public interest has reached unprecedented levels, as have deportations of undocumented workers, their families, and occasionally, even US citizens. Rather than repudiate the Bush & Cheney paradigm, Obama has unfortunately perpetuated it.

A former President’s warning

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

Eisenhower proved prescient. True to his prediction, the contemporary national security racket offends all Americans, regardless of ideology.

Casualties of the national security state: transparency, accountability, and legitimacy

First, it has erected such pervasive secrecy that it threatens the basis for democratic accountability, subverting the consent of the governed on which democratic  legitimacy depends. For years, the NSA operated its dragnet warrantless wiretapping scheme in total secrecy, not only unauthorized by statute, but in direct violation of the Foreign Intelligence Surveillance Act (FISA) enacted by Congress in the 1970s to stop domestic spying.

Every federal court ever to review the program on the merits has struck it down as unconstitutional, yet it persists unabated. Congress bent over backward to rewrite the FISA law in 2008, and appellate courts have thrown out numerous lawsuits challenging it based on the perverse reasoning that, because the NSA’s program is secret, no plaintiffs can prove that they, in particular, have been monitored.

Officials have admitted to violating even the permissive new law. Members of Congress have asked tough questions and received only silence in response. Yet, reflecting a disturbing pattern of bipartisan abdication repeated over the past decade, the House recently voted to reauthorize the 2008 FISA amendments for another five years, even beyond the next administration.

Secret programs violating contrived statutes, especially with the blessing of (supposedly) independent courts, make a mockery of our claim to live in “a land of the free.”

Further installments in this series will examine the ideologically diverse social movements abused by misguided and constitutionally offensive domestic spying activities, as well as the contribution of those programs to the federal budget crisis. The series will conclude by suggesting not one, but two alternative national security agendas for President Obama’s second term.

Photo by leighblackall under Creative Commons license.

Fazaga v. FBI: Eroding democracy, in two dimensions at once

8:15 am in Uncategorized by Shahid Buttar

On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.

FBI seal

Are they above the law?

The ruling is especially surprising given the judge’s previous criticism of the FBI for lying to him in court.

Fazaga v. FBI addressed claims by a series of southern Californians challenging a long running secret infiltration of their faith institutions by an ex-convict and undercover FBI informant named Craig Monteilh. After being promised a six figure payment to infiltrate mosques across southern California—and even to record sexual encounters with women in those communities to enable subsequent blackmail—Monteilh blew a whistle and joined a case brought by the Council on American-Islamic Relations; Hadsell, Stormer, Richardson & Renick LLP; and the ACLU of Southern California.

US District Judge Cormac J. Carney of the Southern District of California dismissed much of the case this week (leaving intact claims against individual FBI officers under the Foreign Intelligence Surveillance Act), holding that the state secrets privilege and sovereign immunity essentially preclude the suit from moving forward against the government.

News outlets such as The Los Angeles Times have featured analysis from ACLU attorney Ahilan Arulanantham, who correctly noted that Judge Carney’s ruling is “contrary to the basic notion that the judiciary determines what the law is and holds the government to it,” and that the ruling essentially “exempt[s] huge swaths of government activity [from] judicial oversight.”

Missing from most reports, however, are a recognition of the multiple ways in which Carney’s decision erodes democracy.

Read the rest of this entry →

America’s one-party state

4:45 am in Uncategorized by Shahid Buttar

Both 2012 presidential campaigns advance the legacy of Dick Cheney

Among the most tragic casualties of the war on terror is the separation of powers that our Founders envisioned to help keep America free. Not only has executive power expanded to disturbing – and profoundly dangerous – proportions in the decade since the 9-11 attacks, but Presidents from both major parties have promoted this transformation.

Rep. Adam Smith (D-WA) understands this well enough to have actively defended constitutional rights, introducing important legislation to restore due process after the latest defense authorization act allowed the indefinite domestic military detention of Americans without charge or trial. Yet in the Romney-Cheney Doctrine, he implies a contrast that is more imagined than real. He writes:

It’s no secret that Cheney was the driving force behind the Bush administration’s failed foreign policies…[O]f Romney’s 24 special advisors on foreign policy, 17 served in the Bush-Cheney administration….The last time they were in government, it was disastrous….

We can’t afford to go back to the failed policies of the past…America’s security depends on moving forward to confront the threats of the future.

While the foreign policy visions of the 2012 presidential candidates do indeed differ, the most striking element of Rep. Smith’s article is its silence on what could reasonably be called “the Obama-Cheney doctrine.”0418-romney-obama-squeaker-landslide_full_600

Rep. Smith correctly notes that Mitt Romney has enthusiastically endorsed the views of many Bush-Cheney administration veterans. He does not mention the Obama administration’s alignment with its predecessor’s domestic security agenda: expanding surveillance, suppressing dissent, militarizing police and intelligence agencies, aggrandizing their powers, entrenching their leadership, prosecuting whistleblowers to reinforce secret government, and ignoring the rights of the millions of people impacted by this bipartisan assault on constitutional rights.
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What Do We Celebrate this July Fourth?

3:41 pm in Uncategorized by Shahid Buttar

When the United States championed democracy, freedom, and opportunity, it made sense to celebrate the Fourth of July.  But are we still promoting those values? If we are paragons of neither opportunity nor freedom, what exactly do we celebrate today?

Our Statue of Liberty bears an inscription welcoming the world’s “tired and poor…huddled masses yearning to breathe free.”  Our open arms which once greeted strangers (on whose backs our country was built), however, have been replaced by laws like Arizona’s SB 1070, copycat laws around the country, and the recent Supreme Court decision upholding provisions that encourage racial profiling. liberty crying Pictures, Images and Photos

Liberty itself is a fading memory, a lyric in an anthem that few Americans today understand, even as millions sing it at sporting events and during today’s holiday.

Robert Samuelson’s Is the U.S. a land of liberty or equality? reviews a duality within America’s political culture.  Samuelson writes that “Americans’ self-identity springs from the beliefs on which this country was founded,” including values of equality and liberty that often stand in tension.  He correctly notes that “in today’s politically poisoned climate, righteousness is at a premium and historical reality at a discount,” which in turns helps “explain[] why love of country has become a double-edged sword, dividing us when it might unite.”

While Samuelson’s observation of political dysfunction is compelling, his analysis is flawed. It examines a conflict between two values, neither of which is visible in today’s United States.

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What Comes Next? The Future of the NDAA

10:27 am in Uncategorized by Shahid Buttar

The dead of night (image: photomequickbooth/flickr)

The dead of night (image: photomequickbooth/flickr)

This is the final part of a 3-part FAQ about the National Defense Authorization Act (NDAA) that began with Another Assault in the Dead of Night and continued with Torture Enabling Expanded Detention.

The first installment explained how the NDAA could be used as a tool for political repression, especially in concert with parallel powers expanded by the PATRIOT Act, and upheld by the Supreme Court, that apologists for the NDAA have generally ignored.

The second installment explained how our nation’s failure to pursue accountability for torture enabled the NDAA’s passage, and also portends the recurrence of torture under the domestic military detention regime the NDAA has authorized. It concluded by noting that torture could create artificial legitimacy for military detention by coercing confessions from whomever is subjected to it.

Put simply, allowing torturers to go free created the conditions to politically whitewash abuses whose predictable recurrence the NDAA will enable.  When torture recurs, it will in turn confer false legitimacy on a profoundly un-American system and undermine political will to restore limits on our government’s power, however deviously it may develop in the future.

Q: Have similar laws caused abuses elsewhere? A: Do political repression and genocide count?

Both world history and current events offer crucial insights on the potential results of authorizing detention without trial.

Those results once inspired our nation to wage a World War.  According to the U.S. National Holocaust Memorial Museum:

German authorities under National Socialism established a variety of detention facilities….In time their extensive camp system came to include concentration camps, where persons were incarcerated without observation of the standard norms applying to arrest and custody….

“[U]nofficial” killings….[were] routinely written up as “suicides,” “accidental” deaths, and “justified killings” of prisoners who were “trying to escape,” “assaulting a guard,” “sabotaging production,” or “inciting prisoners to revolt.…”

Incarceration in a concentration camp was rarely linked to a specific crime or actual subversive activity; the SS and police ordered incarceration based on their suspicion that an individual person…would likely commit a crime or engage in a subversive activity in the future. Read the rest of this entry →

The NDAA: Another Assault in the Dead of Night

11:57 am in Uncategorized by Shahid Buttar

Assault in the dead of night (image: photomequickbooth/flickr)

Assault in the dead of night (image: photomequickbooth/flickr)

Ten years ago, Congress enacted a draconian law with no transparency, regard for process, or even awareness of the profound erosion of constitutional rights the PATRIOT Act would entail. Congress did it again this holiday season, repeating its abdication of its constitutional role by authorizing, in the National Defense Authorization Act, indefinite military detention of even US citizens.

The NDAA, however, has older precursors then PATRIOT: the bill recalls shades of central Europe in the 1930s, long predating the pervasive surveillance enabled over the past decade. It also stands at the crux of several fundamental questions: it owes its genesis to the Obama Administration’s political cowardice and lawlessness in resigning executive accountability for torture. Finally, the NDAA presages the recurrence of torture, as well as the false legitimacy that it confers on a system designed to coerce confessions.

I’ll explain each of these concerns over a 3-part series formatted as an FAQ.

Q: Does the NDAA Authorize Political Repression? A: It Certainly Could.

Ignore the self-assured claims by the bill’s apologists downplaying what it means. Concerns about the NDAA’s potential (dare I say predictable?) abuse stem from beyond the four corners of the NDAA itself.

The key is the PATRIOT Act’s extension of “material support for terrorism” to include associational and speech crimes, even where the defendants had no intention of supporting violence. In Humanitarian Law Project v. Holder (2010), the Supreme Court denied a First Amendment defense to the terror prosecution of a charity whose offence entailed funding workshops encouraging non-violence in Turkey (in the same Term that the Supreme Court held that corporations do enjoy a First Amendment right to buy elections). Under the Humanitarian Law Project ruling, as I’ve written before:

The PATRIOT Act’s material support provisions allow our government to criminalize speech and repress political dissent, a frontal assault on the First Amendment. And with material support cases grounded in associational guilt, the First Amendment is also eroding from its figurative sides.

The NDAA would expand those assaults by eliminating the need to prosecute. In the hands of a president, attorney general, US attorney, or even, potentially, state or local prosecutors willing to use their powers for political purposes, it offers the legal authority for severe repression. Read the rest of this entry →