Goodbye, Bill of Rights

Those who hoped that the change promised by candidate Barack Obama would include repeal of the various acts that have stripped Americans of their constitutional rights should be disappointed. Benjamin Franklin supposedly wrote, "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." The citation is likely apocryphal, at least in terms of its attribution to Franklin, but it is useful shorthand for the unfortunate abandonment of many of the liberties guaranteed by the U.S. Constitution as a consequence of 9/11. The trauma of 9/11 created an opportunity for those seeking to centralize executive power, an objective of recent presidents from both political parties. Many Americans initially accepted that there had to be some abridgment of fundamental liberties while fighting a multi-faceted and unconventional war against terrorism, but few realize just how much the constitutional rights that all citizens take for granted have been eroded. History also teaches us that once a right is suspended, in all likelihood it is gone forever.

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 might well be described as one of history’s more spectacular euphemisms employed to gut a constitution, somewhat akin to Hitler’s “emergency act” in the wake of the Reichstag fire of 1933. It is better known as PATRIOT Act I. PATRIOT Act I became law six weeks after the fall of the Twin Towers and was followed by PATRIOT Act II in 2006. The two laws together diminish constitutional guarantees of free speech, freedom of association, freedom from illegal search, the right to habeas corpus, prohibition of cruel and unusual punishment, and prohibition of the illegal seizure of private property. The First, Fourth, Fifth, Sixth, and Eighth Amendments in the Bill of Rights have all been discarded or abridged in the rush to make it easier to investigate, torture, and jail both foreigners and American citizens. The PATRIOT Act also incorporates the Financial Anti-Terrorism Act of Oct. 17, 2001, which permits the freezing of assets and investigation of individuals suspected of being financial supporters of terrorism. “Suspected” is the key word, as there is no oversight or appeal in the process.

The Military Commission Act of 2006 (MCA) followed the PATRIOT Acts, creating military tribunals for the trying of “unlawful enemy combatants,” including American citizens. Unlike a civil or criminal court, the accused needs only a two-thirds vote by the commission members present to be convicted. The act permits the indefinite jailing of suspects in a military prison without being charged with a crime or given access to a lawyer. The government is not required to produce any normally admissible evidence at a commission hearing and can rely on hearsay or even information obtained overseas during torture to make its case. Detainees do not have access to any classified information used against them and cannot cross-examine or even know the identity of witnesses. The MCA suspends habeas corpus for anyone charged and forbids the application of the Geneva Conventions to mitigate conditions of confinement or to challenge the judicial process or verdict. The Geneva Conventions also cannot be invoked if the accused subsequently claims he was tortured or otherwise abused, protecting overly zealous interrogators from later charges of “war crimes.” The act was also designed to cover all cases that were pending, meaning that it was retroactive.

An executive order issued on July 17, 2007, which is still in effect, authorized the president to seize the property of anyone who “threatens stabilization efforts in Iraq.” As the administration’s own Justice Department decides what constitutes "threatening stabilization efforts," the order can be used to go after any critic of the government. Most disturbing, the order does not permit a challenge to the information the seizure is based on, and it also permits the confiscation of the property of anyone who comes to the assistance of the suspected de-stabilizer.

The threat to civil liberties is real. Under the authority of the PATRIOT Act, the FBI requested more than 30,000 national security letters in 2007, and the number was surely higher in 2008. The letters enable the FBI to look at anyone’s personal information without any judicial oversight or showing of cause. Anyone who is presented with a letter and compelled to cooperate to provide information on a suspect cannot reveal that the letter has been received. Are there 30,000 terrorists roaming the United States? If there were, the country would surely be a bombed-out ruin by now. The government is instead using the security letters and the other tools provided by the PATRIOT Act legislation to look at people who are completely innocent of any wrongdoing, because it is convenient to be able to do so without the bother of having to go to a judge for a search warrant.

Sen. Barack Obama opposed the MCA and voted against it. He was not in the Senate when the first PATRIOT Act was passed, but he criticized the second version for its abuse of civil liberties before voting for an amended version. Candidate Obama ran on his record of opposition to the various pieces of legislation, noting consistently that they had authorized the abuse of authority by law enforcement and had abridged the rights of every American. Unfortunately, President Obama appears to have forgotten the principled positions he took as a senator and presidential candidate. After his inauguration, he moved quickly to publicly ban the CIA’s use of torture, a meaningless gesture in that the Agency had already abandoned the practice, but it now appears that he will do nothing to revoke Bush-era legislation like the MCA that he once strongly criticized. There is every indication that he will also endorse renewal of the PATRIOT Act when it expires at the end of the year, afraid that if he does not do so and there is a terrorist attack he will pay a significant political price. The Obama administration has also been silent about the National Security Agency’s warrantless wiretaps and has invoked the "state-secrets privilege" in connection with a lawsuit by the Islamic charity al-Haramain in an apparent bid to prevent disclosure of the warrantless wiretap procedure.

President Obama is not just contradicting his progressive campaign promises and betraying many of the people who voted for him. As a lawyer, he surely understands that protecting the government’s questionably legal "rights" to monitor citizens completely subverts the rule of law, because it guarantees that there will be no accountability. Currently, judges who rule on the state-secrets issue are not themselves allowed to see the alleged classified information, meaning that there is absolutely no transparency to the process in which the government is asserting an extralegal privilege that is surely unconstitutional.

If the Obama administration is beginning to sound like the Bush White House, it should. To be sure, the new president is relying on the advice of many Bush administration holdovers like FBI Director Robert Mueller. Mueller asserts, without providing any evidence, that the tools provided by the PATRIOT Act have been effective in preventing terrorism, just as Bush-era intelligence chiefs claimed that torture and extraordinary rendition were essential to meet the terrorist threat. All such claims should be viewed with extreme skepticism, particularly as they are rarely backed up by any evidence. The government also often lies when it wants to make a case for some illegal action. Claims made in 2008 that the waterboarding of Abu Zubaida produced a flood of information that frustrated terrorist plots are now revealed to have been false. Zubaida confused his interrogators and sent them off on wild goose chases with information that was either deliberately deceptive or flat-out wrong. In reality, the government cannot cite a single instance where the use of draconian new legislation or illegal procedures like torture has either prevented a terrorist incident or led to the arrest of anyone who was ready, willing, and able to carry out a violent act.

Obama would have been wiser to ignore the experts and sit back and consider the broader picture. Does the creation of a monstrous Department of Homeland Security supported by a bloated defense and intelligence establishment really make sense in light of the threat that the U.S. actually faces? How did we arrive at a 400,000-name no-fly list and an NSA that has conducted hundreds of millions of interceptions of telephone calls without any oversight? That a small group of terrorists holed up in an isolated and backward part of the world got lucky against an unsuspecting America on 9/11 is clear, but the odds of them repeating that spectacular success are minimal. More than seven years later, the actual vulnerability of international terrorism should be completely clear and the government should be telling the people the good news, that al-Qaeda is on its last legs and that the other Salafist terrorist groups that have a similar philosophy have been hounded and contained all around the world. There has been no successful terrorist action within the United States, and the appeal of jihadist terrorism is on the wane everywhere else. Its moment has passed.

In spite of the reduced threat, under Obama the business of fighting terrorism goes on with a change in the rhetoric but not in the policy, buttressed by an enlarged military budget to spread the cheer to Afghanistan and increased spending on intelligence. And there is no sign that the liberties that Americans have bartered away are about to be returned. Having an amorphous foreign threat hanging around is always good politics, as it can be used to divert attention from more serious problems at home. Having the mechanisms at hand to investigate an American citizen can also be useful when the critics become too loud. Those who feared that George W. Bush would give his successors unconstitutional tools that they would be reluctant to relinquish have apparently been vindicated.