Glenn Greenwald asks an interesting question: Who is the worst president we’ve ever had on civil liberties? There are many to choose from, of course, and he discusses all the major candidates. He points out that most of the worst policies were justified by wars, which is certainly true of Lincoln (who suspended habeas corpus without congressional approval, something absolutely forbidden by the constitution), Wilson (who pretty much shredded the First Amendment to put dissenters from WWI in prison) and FDR (who famously built the Japanese internment camps). And he essentially combines Bush and Obama into one president on this issue, both using the war on terror to justify a massive assault on the Bill of Rights:
And then there are the two War on Terror presidents. George Bush seized on the 9/11 attack to usher in radical new surveillance and detention powers in the PATRIOT ACT, spied for years on the communications of US citizens without the warrants required by law, and claimed the power to indefinitely imprison even US citizens without charges in military brigs.
His successor, Barack Obama, went further by claiming the power not merely to detain citizens without judicial review but to assassinate them (about which the New York Times said: “It is extremely rare, if not unprecedented, for an American to be approved for targeted killing”). He has waged an unprecedented war on whistleblowers, dusting off Wilson’s Espionage Act of 1917 to prosecute more then double the number of whistleblowers than all prior presidents combined. And he has draped his actions with at least as much secrecy, if not more so, than any president in US history.
All true, of course. And Greenwald argues that, while the Japanese internment certainly affected more people, it was also temporary. And it is the permanence of the Bush/Obama war on terror policies that sets them apart:
Ultimately, there are two critical factors that, for me at least, are highly influential if not decisive in determining the proper ranking. The first is the extent to which the civil liberties abuses are temporary or permanent.
Most of the contenders for worst civil liberties abuses were “justified” by traditional wars that had a finite end and thus dissipated once the wars were over. Lincoln’s habeas suspension did not survive the end of the Civil War, nor did FDR’s internment camps survive the end of World War II. The Alien and Sedition Acts were severely diluted fairly quickly, while the bulk of Wilson’s abuses which survived World War I lay dormant until the War on Terror. As horrible as they were, these radical erosions were often finite, arguably by design, since the wars which served as their pretext would foreseeably end at some point.
This is one key factor that distinguishes the War on Terror. By its nature, it will never end, at least not in the foreseeable future. It is a “war” far more in a metaphorical sense than a real one.
Since it began, both administrations who have waged it have expressly acknowledged its virtually indefinite – and thus unique – nature. In May 2009, when Obama unveiled his proposal for “preventive detention”, he said: “Unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end.” He added that we’ll still be fighting this war “a year from now, five years from now, and – in all probability – 10 years from now.”
Just last week, the Washington Post reported that the Obama administration is creating permanent bureaucratic systems to implement its War on Terror powers as it “expects to continue adding names to kill or capture lists for years”. Specifically, “among senior Obama administration officials, there is broad consensus that such operations are likely to be extended at least another decade.” That “suggests that the United States has reached only the midpoint of what was once known as the global war on terrorism.”
Civil liberties abuses justified by a finite war can be awful while they last, but then they cease. Abuses that are systematized based on the premise that they are to be permanent do far more than that: they radically alter the nature of the government and the relationship of the political class to the citizenry.
This, to me, has always been the most uniquely pernicious aspect of the War on Terror civil liberties assaults of the last decade: they will not end when the “war” does because the “war” will have no end. Each new power is embedded permanently into the political framework, incrementally transforming the political culture and the species of government itself.
I would rate Obama worse than Bush on every relevant subject other than torture (he did prohibit torture, at least officially, though he is just as bad, maybe worse on applying the rule of law in cases of torture), for two reasons. First, because his support for those policies all but eliminated even the mild objections to the growing national surveillance state among Democrats. The civil liberties groups — the ACLU, the Center for Constitutional Rights, the Electronic Frontier Foundation, etc. — have remained admirably consistent, as have fringe members of Congress like Dennis Kucinich and Ron Paul, but the rank and file in Congress quickly lost any appetite for trying to limit the damage when Obama took office (and Democratic leaders in Congress like Harry Reid, Nancy Pelosi and Dianne Feinstein were complicit in the demise of civil liberties from the start). With Bush in office, there was at least some tacit resistance, though never enough to stop the onward march of executive power; with Obama in office, there is a clear bipartisan consensus against the Bill of Rights.
Second, because Obama knows better. As a constitutional scholar, something Bush could barely pronounce, he knows the damage he is doing. He knew that the FISA amendments were extremely corrosive to the rule of law and the cause of justice when he threatened to filibuster the bill if it included telecom immunity; he threw principle under the bus when he instead voted for the bill without protest. He knew that the use of the State Secrets Privilege to deny the victims of torture and illegal surveillance made the separation of powers all but obsolete and ended the rule of law when it comes to executive power because he said so himself repeatedly when Bush was asserting it. Since taking office, he has done the very thing he criticized in every single legal challenge to what is now his own essentially limitless authority.
As a constitutional scholar and a black man who spent years working in inner city communities, he surely knows that prosecutorial immunity, the abuses of the war on drugs and the lack of access to DNA evidence is dooming innocent people to prison (especially young black and Latino men) and making the 4th amendment all but a dead letter. That did not prevent him from being on the wrong side of all of those issues every time they came before the Supreme Court.
Two other points. First, as Greenwald notes, these policies that erode civil liberties are often accompanied by other policies that advance them. There is no pure soul to be considered; presidents can and do both horrible things and good things, often simultaneously. Second, there is no question that a President Romney would be just as bad on all of these issues and significantly worse on a host of others, like women’s rights and gay rights. So neither is there a pure choice of candidates.
But if you voted for Obama, I hope that you will also hold his feet to the fire on civil liberties, where his record is nothing short of appalling. Don’t pretend that it’s all okay, that he’s got some super-secret plan to reverse all of this in his second term. He doesn’t. Civil liberties used to matter to Democrats, but it doesn’t seem to much anymore — at least when a Democrat is in the White House (Clinton was also pretty bad on these issues, though not nearly as bad as Obama). I sure as hell don’t plan on letting up on that criticism.