In the aftermath of 9/11, President George W. Bush guided the Patriot Act through Congress, unilaterally expanded surveillance of Americans, amplified executive detention authority and took other dramatic measures that shifted the balance between liberty and government power significantly, in the name of national security.
After the initial Patriot Act was passed, many Democrats perceived the growing threat to civil liberties and started to have misgivings. Now, five years into the Obama presidency enthusiasm for these measures seems to be bipartisan.
As a presidential candidate, Barack Obama in 2007 and 2008 argued that sacrificing liberties in the name of anti-terrorism posed long-term risks. He condemned military commissions and violations of habeas corpus as serious threats to the great traditions of our legal system and our way of life. He called the Patriot Act shoddy and dangerous.
Senator Obama sharply criticized President Bushs surveillance policies as going beyond the boundaries of the Foreign Intelligence Surveillance Act and the Fourth Amendment. He vowed that if elected he would run an administration of unprecedented transparency and vigorously protect whistleblowers.
President Obamas deeds have not matched Senator Obamas words. Indeed, he has raised the stakes.
He promised to close Guantanamo by January 2010, but instead slowed down releases from Guantanamo and vastly expanded the prison camp at Bagram Airfield in Afghanistan.
In 2009, he announced a policy of prolonged detention, ensuring indefinite imprisonment for detainees, including those against whom the U.S. government had no evidence of wrongdoing. In 2011, he signed the renewal of the Patriot Act. He has increased the role of unmanned drones and claims the authority to order a strike against any suspected terrorist: no trial necessary.
He also has expanded the surveillance operations of the National Security Agency (NSA), monitoring phone and internet traffic in a seemingly indiscriminate manner. The full extent is uncertain, but the goal is total information awareness, an idea floated shortly after 9/11.
The agency spies not just on Americans, but on residents of U.S. allies and other friendly countries. Germany, where President Obama has enjoyed high popularity, has protested particularly loudly, knowing well the dangers of totalitarian surveillance powers.
The administration also has spied on reporters, and Attorney General Eric Holder signed an arrest warrant for Fox News correspondent James Rosen over normal journalistic behavior.
Former NSA contractor Edward Snowden exposed the agencys vast surveillance program. Instead of affording him whistleblower protections, the administration now wants to imprison him.
In fact, the current administration has used the Espionage Act against whistleblowers more than all previous administrations combined. And to prevent future whistle-blowing, the White House is encouraging federal employees to spy on one another.
Our Democratic law professor president, a self-described progressive, has created a perfect storm. Ten years ago, liberals screamed because the Republican administration took note of what patrons checked out at the library. Today, they seem much more complacent in the face of more intimate forms of mass surveillance.
Democrats once talked about prosecuting executive officials for wrongdoing. Today they muse about whether the government should jail journalists like Glenn Greenwald, U.S. columnist for the British newspaper, the Guardian, merely for providing a soapbox for whistleblowers.
The president has announced that the war on terror is all but over. We need a new approach to the threat. If the war on terror is being ended, the extraordinary measures that threaten our personal liberties also should be ended.
Some say that foreign terrorists hate the United States for its freedom. This seems oversimplified at best. But if its true, Americas enemies must love what U.S. leaders have done in the nearly 12 years since 9/11.
The question isnt about balancing freedom and security. Determined terrorists can always take lives. But only our politicians, with our acquiescence, can take our freedoms.
|Anthony Gregory is a Research Fellow at the Independent Institute and author of the award-winning Independent book, The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror.|
THE POWER OF HABEAS CORPUS IN AMERICA: From the Kings Prerogative to the War on Terror
As perhaps the most important legal protection, habeas corpus has a rich history from medieval England to modern America involving opportunistic power plays, political hypocrisy, ad hoc jurisprudence, and many failures in effectively securing individual liberty.