Threats to Civil Liberties Continuing under Obama

May 1st, 2011 - by admin

John Diaz / San Francisco Chronicle – 2011-05-01 23:36:03

America’s ‘New Normal’
Threats to Civil Liberties Continuing under Obama

SAN FRANCISCO (May 1, 2011) — A visit last week by Janet Napolitano, this nation’s third secretary of the Department of Homeland Security, gave me a chance to ask a question that has haunted Americans concerned about preserving the Constitution’s guarantee of individual rights ever since the mad rush to ramp up security after the Sept. 11, 2001, terrorist attacks. At what point, if ever, would this nation begin to restore a balance between security and civil liberties?

Her answers were less than reassuring.

President Obama, the former constitutional scholar who as a presidential candidate had spoken eloquently about the need to respect the rule of law, has made important but decidedly modest strides toward rebalancing civil liberties. Much of George W. Bush’s post-9/11 surveillance and security apparatus remains in place.

“I would suggest that there is change that is perhaps imperceptible to the public eye, but is there nonetheless,” Napolitano said during a meeting with The Chronicle’s editorial board.

Napolitano highlighted the establishment of a chief privacy officer within Homeland Security to consider how long records should be kept, whether they should include personally identifiable information and who should have access to them. She said the department — which has 230,000 employees — now has “an entire group” reviewing civil rights and civil liberties.

“We have them involved on a lot of projects from the get-go and to be a double check on us,” she said. That group helps ensure that the department’s systems for data collection and analysis are “focused on tactics and behavior and not racial profiling, that sort of thing,” she said.

Napolitano may be getting rid of the meaningless color-coded threat assessment system — which seemed designed to keep this nation in a perpetual state of unease — but there is little evidence of the magnitude of change suggested by candidate Barack Obama when he pledged to “break the fever of fear that has been exploited by this (Bush) administration.”

Obama certainly started on the right track. Within days of taking office, he signed executive orders explicitly prohibiting torture and shutting down secret overseas prisons, and mandated the closure of the Guantanamo prison within a year.

In the aftermath of the Sept. 11, 2001, attacks, President George W. Bush had claimed virtually unfettered authority to detain anyone — anywhere in the world — he deemed a threat to the United States.

The Bush White House eventually backed off from its most egregious intrusions on the rule of law after the jarring revelations of prisoner mistreatment at Abu Ghraib and a 2006 U.S. Supreme Court ruling that declared government plans to try terrorism suspects in secret military tribunals would have violated the Geneva Conventions.

“If you look at the Bush administration of 2007 and the Obama administration of 2011, the story is one of continuity,” said Ben Wizner of the American Civil Liberties Union, author of a 2010 analysis of the new administration’s approach to national security, civil liberties and human rights.

The upshot of the ACLU report was that Obama’s civil liberties record in his first 18 months in office was “at best, mixed.” It warned of a “real danger” that Obama’s tenuousness about curbing government excesses in the name of counterterrorism practices could lead to the creation of “a new normal” of diminished liberties.

“It’s been disappointing from the standpoint that there hasn’t been a dramatic shift, but it’s not all President Obama’s fault — some of it is Congress,” observed Bob Barr, a former Republican congressman from Georgia and 2008 presidential candidate for the Libertarian Party. For example, Barr noted that Congress refused funding to close the Guantanamo Bay prison.

The open-ended nature of a war on terrorism is exactly the reason Americans should be challenging what is becoming an entrenched level of government powers to track and detain alleged enemies of the state.

“That’s the problem with this post-9/11 paradigm,” Barr said. “Anyone is a potential terrorist, and a terrorist act can take place anywhere and anytime in any square inch of the world.

“It’s very easy to fall into this notion that we’re going to be in this state of war forever and ever.”

Erosion of civil liberties was a concern when George W. Bush was president and began defying the Constitution and curtailing civil liberties in the name of security. It remains a concern today. Americans deserve a restoration of civil liberties that is perceptible to the public eye.

Where ‘Change’ Is Proving Elusive

President Obama has preserved many of predecessor George W. Bush’s post-9/11 curbs on civil liberties, cementing what the ACLU, among others, has decried as a “new normal” of diminished individual rights.

Surveillance: As did Bush, Obama has maintained that the statute that granted immunity to telecom companies that helped facilitate warrantless wiretapping is beyond the scope of judicial review. Also, Obama recently signed a three-month extension of the so-called Patriot Act, which extends the ability of the federal government to set “roving wiretaps” on suspects, obtain business and library records and obtain wide eavesdropping approval on “lone wolf” suspects not necessarily linked to terrorist groups.

Military Tribunals: Obama has dropped his campaign pledge to try alleged terrorists such as confessed 9/11 mastermind Khalid Sheikh Mohammed in civilian courts. He and others face military trials at Guantanamo Bay.

State Secrets: Obama’s administration has urged the federal judiciary to dismiss a lawsuit over its targeting of an American citizen for assassination overseas — Anwar al-Aulaqi, a cleric believed to be in Yemen — on the argument that the case would reveal state secrets.

Watch lists: The number of Americans whose ability to travel has been impaired by secret watch lists and no fly lists — with little or no recourse to challenge the government — reportedly has increased under Obama.

John Diaz is The Chronicle’s editorial page editor. You can e-mail him at

© 2011 Hearst Communications Inc.

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