Glenn Greenwald did an interview with former Sen. Russ Feingold, one of the few consistent civil libertarians in Congress (and I mean really few, less than a handful) for the last couple decades. You can listen to it here and read the transcript here. They both point out, as I have, how bad Obama has been on civil liberties when it comes to the war on terrorism:
GG: Good, so let me just dive right into the book and ask you about a few of the passages I want to discuss. You have a section on civil liberties, which is obviously one of the areas that you’ve been most identified with, and the Democrats in the Obama era, and what you write is,
To whatever extent the Bush abuses aroused the American left, progressives, part of the Democratic party and, most interestingly, part of the conservative movement, Americans have metaphorically gone back to sleep when it comes to Constitutional intrusions in the name of fighting terrorism. Criticism of Obama’s failure to change much of this has been muted on the American left—embarrassingly so, given the powerful complaints that came from those quarters.
Which policies do you have in mind when you talk about the continuity of these policies and why do you say to the American left, “silence is embarrassing?”
RF: Well unfortunately there’s quite a range of things you can mention. Before the presidential election I held a hearing on the range of things the Bush administration had done to damage civil liberties. There are about 25 areas. And I indicated that I’d be giving a grade to the new president after the first few months. And as I say in the book, Obama got off to a good start on this, with regard to the first day, Guantanamo, saying it was going to be closed, saying no more torture.
But there was major backsliding after that and the areas include, regrettably, not changing that state secrets privilege usage. That is one of the worst things the administration does, so that people can’t litigate the law with regard to cases because they use a state secrets immunity. This is a serious problem. Also of course, Guantanamo, didn’t finish the job on that, to say the least. Accepted there were far too many fears, of the argument, that you somehow you can’t try people in a regular court, which is absurd. And now, most disturbingly, somehow the president signs a bill that has to do with indefinite detention, which to me is absurd and clearly unconstitutional. So that is obviously an area that concerns me as well. Not to mention the fact that the Patriot Act still has not been fixed. You don’t have a fix on the library and business records. You don’t have a fix on “sneak and peak” provisions. I don’t think the NSA, the national security letters, are adequately regulated.
I could go on and on, but there are many areas where the job hasn’t been done, although I’m a supporter, in fact a co-chair, of the President’s reelection campaign. I have been open in saying this is one of the three or four areas where I believe there’s a really serious problem with not fixing what happened in the Bush administration. And of course the failure to completely renounce the commander-in-chief claims that were made under George Bush, which were that somehow legislation could be overridden in the name of torture, or the name of warrantless wiretapping, which to me is something that this president should completely and clearly repudiate.
GG: Right. Now one of the interesting things about that list is that a lot of times defenders of the administration will say that certain failures that he’s had, where things that he hasn’t done that he said he would, is the fault of Congress for blocking him. And most of the things that you just identified are things that he’s actually done on his own without any interference from or reliance on Congress, such as the assertion of the state secrets privilege, and his signing of the indefinite detention bill.
But one area that does obviously involve Congress is Guantanamo and defenders of the President will say that, although he failed to close Guantanamo, that was because Congress prevented him from doing so, and they’ll even point to a vote that was 90-6 in the Senate where 90 senators, including you, voted against funds to close Guantanamo, and they’ll suggest that that’s because people were afraid to close it. My recollection is that the reason many senators such as yourself voted against it was because you wanted first to know what the plan was going to be, and didn’t want Guantanamo being essentially being re-imported onto American soil. But can you talk about your vote specifically not to fund the closing of Guantanamo, and the general argument that it wasn’t Obama’s fault but the fault of the Congress that it hasn’t been closed?
RF: No, I think it’s legitimate to blame Congress far more than the administration on a number of things. I mean, clearly Congress is much worse as a body on these civil liberties issues than even President Obama’s been, because of the lack of sensitivity to these issues. At least he seems to have a desire to close Guantanamo. Yes, the vote there had to do with the fact that we had no idea where people were heading with this. It struck me as more dangerous than any other alternative, especially given what they were talking about doing. There were some pretty bizarre notions, and what I’m very disturbed about is what comes out of this, is the President acceding to indefinite detention as some kind of a middle ground, to resolve this concern about sending people back to the countries they came from, that they would do terrorist attacks again. That was the rationale that was involved.
GG: Right. Now obviously a lot of what you said, like the assertion of state secrets, continuing to detain people indefinitely and the like, really are decisions on the part of the administration, and not acts of Congress. But one of the things that you said in the interviews in connection with the book, specifically a Huffington Post interview about your book was you said, “It’s one thing if the Bush actions with regard to civil liberties are sort of an outlier. It’s far more dangerous if they become reaffirmed under a progressive president like President Obama. It sort of gets cemented in.” What do you mean by that? Why is it more dangerous if these things are done by a progressive president such as Obama than by a conservative president like George Bush?
RF: This is about constitutional history. This is about the legacy of our Constitution. Everybody knows that there’s a huge difference between somebody doing something once, and then people acknowledging it shouldn’t have been done, and a great example of course would be Lincoln’s unconstitutional actions in lifting the writ of habeas corpus where he basically admitted that it was unconstitutional. That’s one thing. Korematsu, the detention of Japanese Americans, acknowledged generally to have been wrong and one of the worst acts in American history. Those things did not get cemented in, though on the other hand George Bush, who was the most reckless president, maybe of all time, with regard to civil liberties does this, it’s one thing.
If Barack Obama comes in and doesn’t clearly repudiate at least in words, in statements, those things then people can say Obama, a constitutional law professor, who co-sponsored most of Russ Feingold’s amendments in the Senate having to do with civil liberties, even he said it was okay, that’s when you start having the cementing of constitutional history. Now I just want to say on this point, yes, you could blame Congress for many things, but that does not excuse the White House from making a clear statement that it’s wrong, and that they believe that the Constitution and civil liberties require something else. In other words, sort of softening the stance and sort of dealing with it later by blaming Congress also has the effect of taking away the presidential imprimatur of saying this is wrong. That’s hard. I understand when he became president he was surrounded by military people, justice department lawyers, his own personal lawyer in the White House. Every single one of them was pushing him to have the broadest interpretation of executive power possible.
But you know what? A president has to resist that in order to keep the balance of our Constitution, and I support the President but I certainly hope that, almost more than any other area, this is one he starts reversing course on.
As I have argued for years, it’s the use of the State Secrets Privilege that is the most dangerous aspect of the problem. By denying access to the courts for the victims of executive power abuse, from warrantless wiretaps to torture, the SSP eliminates the one mechanism that can enforce constitutional safeguards. It destroys the separation of powers and the independence of the judiciary and gives us an unconstrained executive — the very thing our constitution was written to prevent.