roger hollander

Glenn Greenwald

www.salon.com, February 18, 2009

(updated below)

During the Bush presidency, there were few reporters, if there were any, who were better on issues of civil liberties and executive power abuses than Charlie Savage, who won the Pulitzer Prize for his work exposing the lawlessness of Bush’s signing statements while at The Boston Globe.  For that reason, it will be very difficult even for the hardest-core Obama supporters to dismiss away the following observations about Obama as nothing more than the angry harping of excessively impatient, unfairly harsh and/or alarmist Obama critics (also referred to by some Obama supporters — using the Fox News script — as “Far Leftist, Marxist, reactionary, radical demagogues“).  From Savage this morning in The New York Times:

Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.

In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.

The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.

And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”

These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.

Savage lists several other examples of controversial Bush/Cheney “War on Terror” policies which have been either fully embraced or preliminarily welcomed by the Obama administration, all of which have been previously discussed here (though one episode Savage didn’t mention which is one of the most disturbing yet is the Obama DOJ’s ongoing and increasingly aggressive efforts to keep Bush’s NSA warrantless spying program shielded from judicial review, by invoking Bush’s State Secrets argument). 

Concerning the pending dispute over Bush’s wildly broad assertions of executive privilege in order to prevent his aides (such as Karl Rove) from having to disclose information to Congress, Savage quotes Obama’s White House counsel Greg Craig as follows:

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

That may be the most revealing quote of the article.  If — as virtually all Bush critics agree — the Bush presidency ushered in a massive and dangerous expansion of executive power, isn’t it necessary, by definition, to scale back some of those powers — i.e., to “undermine or weaken the institution of the presidency” — if those abuses are to be reversed?  The cynical view has long been that Obama will not, on his own, meaningfully uproot Bush’s executive power expansions because political officials do not get into office and then start voluntarily giving up their own power.  Craig’s statement constitutes a virtual affirmation of the cynic’s view of Obama’s intentions.

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Having said all of this, and while believing that Savage’s article is of great value in sounding the right alarm bells, I think that he paints a slightly more pessimistic picture on the civil liberties front than is warranted by the evidence thus far (though only slightly).  Additionally, it is all but certain that media stars and right-wing Bush followers will dishonestly exploit Savage’s article to make claims about “vindication of Bush policies” that go far beyond the cautious statements Savage makes.

As Savage notes, there was a flurry of Executive Orders issued by Obama in the first week which are indisputably positive and constitute genuine reversals of some key Bush policies  — banning CIA black sites, guaranteeing International Red Cross access to all detainees (i.e., no more secret detentions), freezing all military commissions, increasing some Executive Branch restrictions on presidential secrecy powers, substantially limiting the interrogation techniques which (at least for now) the CIA is authorized to employ.  All of those orders were, by design, preliminary, incomplete and reversible — and their value is therefore limited — but they were clearly important steps in the right direction.

Additionally, the fact that there are some Obama appointees with some inexcusably horrible, Bush/Cheney-replicating views — such as Solicitor General Elena Kagan’s endorsement of the “war” paradigm to justify indefinite, lawless detention of “enemy combatants” and Deputy Solicitor General Neal Katyal’s partnership with Bush official Jack Goldsmith to advocate for Orwellian “national security courts” — doesn’t mean that those will become Obama’s policies.  After all, Obama’s own Vice President and Secretary of State last year co-sponsored legislation to ban the use of the State Secrets privilege as a preemptive tool to immunize Presidents from judicial scrutiny of alleged criminality, but that sure didn’t stop the Obama DOJ from embracing exactly that dangerous secrecy weapon in a federal appeals court last week.  Policies become policies when the President adopts them, not when some of his appointees advocate them.

There are also some mildly encouraging signs that Congress will impose checks on Obama’s power when he fails to follow through on his promises to do so.  As Savage notes, numerous members almost immediately re-introduced the State Secrets legislation as a rebuke to Obama after his DOJ advocated that power for itself.  Perhaps more notably — and more surprisingly — Rep. Jane Harman, a Blue Dog who was one of the worst enablers of Bush abuses of the last eight years, wrote an excellent Op-Ed in her local newspaper last week that went way further than Obama has gone in demanding a restoration of basic civil liberties.  She demands that all Guantanamo prisoners be released, sent home, or tried in our existing federal courts; that the Military Commissions Act be repealed in its entirety; and that all new laws in these areas be debated and drafted entirely out in the open, with full public hearings first. 

If someone like Jane Harman is emphatically advocating those measures, then there may be hope that even if, as appears to be the case, Obama is intent on preserving some Bush/Cheney abuses, it will be Congress — which has the ultimate duty here — that stops him.  If, for instance, Obama wants to create some new, due-process-abridging detention scheme on U.S. soil (“national security courts”), he will need Congressional approval, and if someone like Jane Harman is already signaling her opposition, it’s difficult (though hardly impossible) to imagine how he would obtain that.  The fact that Congress has spent the last eight years being complicit, meek, compliant and impotent is no reason to assume they will continue to be.  Congress has a history of being much more assertive with Democratic Presidents, and that could — and should — be an important check on Obama.

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Nonetheless, there is no question that Obama has already taken some truly alarming steps, including — in addition to those listed above — invocation of highly dubious secrecy claims to resist FOIA requests and keep Bush/Cheney documents concealed. Moreover, after initially (and very tentatively) defending the limited rendition policy which Leon Panetta said they would continue, I’ve become convinced — for reasons Darren Hutchinson has argued and Savage today pointed out — that there’s more potential mischief in that policy than I immediately recognized.

There’s just no denying that there are substantial and disturbing steps which have been taken.  And critically, the primary excuse offered by Obama supporters for all of these actions — he just needs more time; it’s only been three weeks — is a complete straw man.

These are not complaints that Obama has failed to act quickly enough to reverse Bush/Cheney policies.  Indeed, there are many areas where Obama has explicitly said he needs time before deciding what he wants to do — closing Guantanamo, proceeding with detainee trials; deciding if he wants to claim Bush’s power to indefinitely detain “enemy combatants” on U.S. soil;  responding to some FOIA requests, etc.  Very few civil libertarians — and certainly not me — have objected to his needing more time before he finalizes his exact policies.  That’s perfectly reasonable.   Some of these issues are truly complex, involve many moving parts, and require that many factions which he needs (e.g., inside the CIA) be placated.  Taking some time is reasonable.  The complaint is not that Obama has failed to move quickly enough to repudiate Bush/Cheney abuses.  Virtually nobody is arguing that.

Rather, the criticisms are grounded in the opposite premise:  these cases which have provoked objections are all cases where Obama has already taken affirmative actions to preserve and defend Bush/Cheney policies.  In the State Secrets case, for example, the Obama DOJ explicitly rejected the ACLU’s offer for more time, declaring they do not need or want more time, that they have had ample time to review the issues and have decided that they believe in the Bush/Cheney theory of what the State Secrets privilege allows.  Here’s what Greg Craig told Savage about why the Obama DOJ embraced Bush’s State Secrets theory:

Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance.

Can that be any clearer?  Not even the Obama DOJ is claiming they needed more time.  They’re saying they had all the time they needed, so Obama supporters should really stop trying to defend them by offering up excuses that the Obama administration itself rejects.

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The bottom line is this:  most of the key civil liberties and Constitutional questions that linger from the dark Bush/Cheney era remain unresolved thus far.  Obama has not yet embraced or rejected most of them.  And that is by design.  There was that first week of Executive Orders that made some nice symbolic gestures and, in some cases, took some tangible steps.  In other cases, the Obama administration has already evinced some of the truly disturbing tendencies of its predecessors.  But overall, the truly controversial and weightiest questions have been pushed off to the future (e.g., he ordered Guantanamo closed but has not yet said whether he wants to retain the power to imprison accused Terrorists without a real trial).  In sum: who and what Barack Obama is when it comes to the restoration of our core civil liberties and Constitutional protections remains to be seen.  Those fights are still ones that will be waged.

There are people who believe that Barack Obama is kind, just and good, and thus are going to have a hard time believing that he’s embracing some of the most abusive Bush/Cheney policies even when he does it right in front of their faces.  Others aren’t ever going to object to what Obama does in this area, because they believe (as Bush supporters believed about Bush) that there’s nothing really wrong if Obama wields these same powers since Obama is a kind-hearted ruler and therefore can be trusted not to abuse these powers.  As DCLaw pointed out yesterday, people with that swooning mentality can’t be reached because they don’t really believe in the basic premise on which the country was founded, as enunciated by James Madison in Federalist 51:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.  

We don’t place faith in the Goodness and kindness of specific leaders — even Barack Obama — to secretly exercise powers for our own Good.  We rely instead on transparency and on constant compulsory limits on those powers as imposed by the Constitution, by other branches, and by law.  That’s what it means to be a nation of laws and not men.  When Obama embraces the same abusive and excessive powers that Bush embraced, it isn’t better because it’s Obama rather than Bush wielding that power.  It’s the same.  And that’s true even if one “trusts” Obama more than Bush. 

A genuine reversal of the last eight years — meaning something more than just sand-papering the roughest edges — will come not from having a kinder-hearted and more magnanimous leader, but only from a restoration of the legal and Constitutional framework that makes a President’s magnanimity irrelevant, since his powers are exercised transparently and with real checks and limits.  It remains very much an open question whether that will happen.  There are some preliminary signs that it could, and some much more concrete signs that it won’t — at least not without a very concerted fight.

UPDATE:  Greg Sargent had the same reaction I had to Greg Craig’s disturbing vow that Obama will do nothing to “undermine or weaken the institution of the presidency.”  Self-evidently, it’s very hard to see how Bush/Cheney executive power abuses will be reversed if maximizing presidential power is their guiding principle.

In CQ yesterday, Tim Starks raised several issues similar to the ones Savage raised today, documenting that “on some of the most controversial intelligence issues of the Bush years, President Obama is either following in the footsteps of the former president or positioning himself to be able to do so later, if he chooses.”   Like Savage did, Stark provides a balanced account, taking note of the positive steps Obama has taken.  Still, all of these articles and episodes make conclusively clear that there is very real cause for concern about the direction in which they have been moving.