Ivan Eland

Barack Obama entered the presidency as one of the most rhetorically pro-civil liberties politicians in recent memory. And shortly after taking office, he drew applause from friends of liberty for promulgating executive orders closing Guantanamo and CIA secret prisons, ending CIA torture, suspending kangaroo proceedings at military tribunals, and pledging more openness than the secretive Bush administration. Unfortunately, instead of prosecuting Bush administration officials, including George W. Bush, for violating criminal statutes against torture, illegal wiretapping of Americans, and other misdeeds—thus avoiding the bad precedent of giving a president a free pass on illegal acts—Obama appears ready to vindicate the prior administration’s anti-terrorism program by adopting Bush Lite.

Warning signs that Obama was softer on civil liberties than advertised came even before he took office, when as a Senator, he voted for blatantly unconstitutional legislation that allowed federal snooping into some e-mail messages and phone calls without a warrant. The Constitution implies that all government searches and seizures of private property require a judicially-approved warrant based on probable cause that a crime has been committed—with no exceptions mentioned, including for national security.

Politicians love symbolic acts and Obama’s rapid pledge to shutter the high profile prison at Guantanamo and secret CIA prisons was widely praised. But if civil liberties continue to be violated elsewhere, have we made much progress?

Obama’s nominees have said the administration will continue the CIA’s policy of “extraordinary rendition” of terrorism suspects—a euphemism for secret kidnapping without the legal nicety of extradition or any other procedural due process rights. Prior to the Bush administration, such government-sanctioned kidnapping was authorized only to return the suspects to their home countries. The Bush administration began using such renditions to abduct suspects and send them to third-party nations that practiced harsh torture—presumably to keep U.S. hands (relatively) clean. Leon Panetta, Obama’s CIA director, has said that the new administration will continue the Bush administration’s practice of rendition to third party countries and relying on those countries’ suspect diplomatic promises not to torture.

Also, Obama supposedly banned CIA torture by executive order, but such orders are not laws and can be reversed with the stroke of a pen. What’s worse, although CIA director Panetta has admitted that water boarding (simulated drowning) is torture, he has also asserted publicly that if regular interrogation techniques did not produce information from a prisoner suspected of being involved in an imminent attack, he would request the authority to use harsher methods.

In perhaps the most important of the civil liberties waffling, Elena Kagan, the administration’s nominee for solicitor general at the Justice Department, pledged to continue detaining indefinitely prisoners without trial, even if they were noncombatant terrorist financiers arrested far from a combat zone. Ominously, the Obama administration is stalling on taking a position on the even more important Bush-era policy of perpetually incarcerating “enemy combatants” without trial on U.S. territory. To stay within the U.S. Constitution, such vital habeas corpus rights, one of the pillars of the rule of law, should only be suspended by Congress in areas where combat has rendered the civilian courts inoperable—hardly the case in the United States during the never-ending “war on terror.”

Although Obama’s executive order suspended the Bush administration’s kangaroo military tribunals, which have insufficient legal procedural safeguards, it has kept its options open on their resumption.

Finally, the new administration has mimicked the Bush administration’s use of the “state secrets” doctrine to try to nix lawsuits by former CIA detainees and, for the same reason, pressured another country’s court not to release information about U.S. torture of a prisoner. Traditionally, the doctrine was usually used to withhold specific evidence in a legal proceeding, not to nix entire cases against the government for malfeasance. So much for a more open government.

The Obama administration is new and should be given a chance to do the right thing. Although certainly better than the lawless Bush administration, the new boss unsurprisingly resembles the old boss.

Historically, party label has been a less good indicator about actual presidential policies than the era in which the chief executive served. For example, in terms of actual programs, Richard Nixon was the last liberal president, a chief executive who largely continued Lyndon Johnson’s government penetration into American society and even further expanded it. Similarly, Jimmy Carter started the move back to the right and Ronald Reagan continued it (but in practice he really wasn’t all that conservative). Civil liberties follow the general trend. After the first Word Trade Center bombing in 1993 and the Oklahoma City and Tokyo subway attacks in 1995, Bill Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996, which augmented the government’s powers of surveillance on Americans and paved the way for the further vast expansion of such authority (and other aforementioned dramatic civil liberties violations of the Bush administration) after 9/11.

Typically in American history, any crisis—such as 9/11—causes an expansion of government power. After the crisis recedes, a public reaction to government excesses usually ensues—as now exists with Bush policies. Yet government power never quite recedes to its pre-crisis level. Unfortunately, what we are likely to see from a post-9/11 Obama presidency is that same historical phenomenon playing out.

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Ivan Eland Send email Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books, Recarving Rushmore: Ranking the Presidents on Peace, Prosperity, and Liberty, The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy. Full Biography and Recent Publications