War on Terror 2.0

Defending government eavesdropping without a warrant. Arguing that prisoners of the U.S. held overseas don’t have the right to challenge their detention in U.S. courts. Claiming that victims of CIA kidnapping shouldn’t have their cases heard because of “national security” interests.

These were supposed to be relics of the Bush administration and its attacks on basic constitutional and human rights. Instead, they are among the many troubling actions taken by the new administration of President Barack Obama.

Rather than repudiating Bush’s shredding of the Constitution, the new White House is embracing some of the worst abuses carried out by the Bush administration in the name of national security and the “war on terror.”

As a candidate for president, Obama promised a new direction. While pledging to maintain national security, Obama said that “we also want to make sure that we’re protecting the Constitution, and that we’re not excessively providing the president with a sort of a ‘blank check’ when it comes to dealing with national security,” he told ABC’s This Week.

And, in fact, it was refreshing to hear Obama’s new Attorney General Eric Holder declaring bluntly during his confirmation hearings that “waterboarding is torture.” It was a forceful repudiation of one aspect of the Bush administration, at least–Vice President Dick Cheney had, after all, openly defended “waterboarding” in October 2006.

This seemed to confirm the expectations expressed by Obama supporters like George Washington University law professor Jeffrey Rosen, who wrote in a March 2008 op-ed article in the New York Times: “As a former grassroots activist, Mr. Obama understands the need to make the case for civil liberties in the political arena. At a time when America’s civil-libertarian tradition has been embattled at home and abroad, his candidacy offers a unique opportunity.”

But just two months into his presidency, the “unique opportunity” that Rosen thought Obama represented seems to be evaporating. The litany of disappointing actions on civil liberties taken by the Obama administration seems to grow longer by the week.

Among other things, since taking office, the Obama administration has: pre-empted a Supreme Court ruling on whether a legal resident on U.S. soil can be imprisoned indefinitely without trial as an “enemy combatant”; attempted to block a judicial ruling on Bush’s warrantless wiretapping program; asserted in court that prisoners currently held overseas by U.S. forces in Bagram, Afghanistan, have no constitutional right to challenge their detentions in U.S. courts; and argued to dismiss cases brought in federal court by alleged victims of CIA kidnappings and torture on the grounds of “national security.”

As ACLU Executive Director Anthony Romero said after Obama’s Justice Department argued in federal court that a lawsuit filed by five current and former detainees against Jeppesen Dataplan–a company accused of arranging extraordinary rendition flights for the CIA–should be dropped:

Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government.

This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue.

The reveresals from what Obama promised–or was expected–to do on civil liberties questions have shocked many people who looked forward to the end of the Bush regime.

On the question of warrantless wiretapping, for example, the Obama administration’s arguments in one important court case are indistinguishable from its predecessors.

In the case, brought by two American lawyers against the Bush administration, a federal judge ruled in favor of admitting into evidence a classified document showing that the lawyers for a Saudi charity, the Al-Haramain Islamic Foundation, were electronically eavesdropped on without warrants by the Bush administration.

The Obama administration argued in court that national security would be compromised if the lawsuit was allowed to proceed. As Salon.com’s Glenn Greenwald wrote:

Manifestly, the Obama [Justice Department] has one goal and one goal only here: to prevent any judicial ruling as to whether the Bush [National Security Agency] warrantless eavesdropping program was illegal. And they’re engaging in extraordinary efforts to ensure that occurs…

Everyone knows the Bush administration spied on Americans without warrants and in violation of the law. Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on. Still, there’s the Obama administration — just like the Bush administration–claiming that we’ll all be slaughtered if a court rules on whether the president broke the law.

Another disappointment came in early March, when the Justice Department argued in a California federal court to dismiss a case filed against former Bush administration official John Yoo.

Yoo famously drafted much of the so-called “Bybee torture memo”–a Justice Department document that approved the use of CIA interrogation methods, including rendition, and blessed as legal methods of physical and psychological coercion that inflicted discomfort “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

Last year, lawyers for supposed “dirty bomb” plotter Jose Padilla–a U.S. citizen who spent years in a military brig without being charged, and subject to sensory and sleep deprivation and other harsh interrogation measures–filed a suit against Yoo.

If heard, it could challenge the government’s policies on the treatment of detainees. According to one of the lawyers, Jonathan Freiman, the premise of the suit is that “a lawyer who gives the green light to clearly illegal conduct is an accomplice to that conduct.”

But the Obama Justice Department is standing behind Yoo–on the grounds that “the Department of Justice generally defends employees and former employees in lawsuits that are filed in connection to their official duties,” according to department spokesperson Matthew Miller.

“We’re not saying that we condone torture,” Justice Department lawyer Mary Mason said at the hearing on the suit.

But by arguing that the case against Yoo should be dismissed, the Obama administration is protecting the very man who crafted the legal reasoning to justify torture as an acceptable part of the U.S. “war on terror.” How is that not “condoning torture”?

The Obama administration isn’t protecting just Yoo, but other top Bush administration military officials who are the targets of lawsuits brought by prisoners who say they were tortured while being held at Guantánamo Bay.

In another federal court document filed in March, the Justice Department argued that holding military officials liable for their treatment of prisoners could cause them to make future decisions based on fear of litigation rather than appropriate military policy. “The Obama administration appears to be sticking with Bush administration legal definitions in pending litigation,” reported the Associated Press.

The case, involving four British men who say they were beaten, shackled in “stress positions” and forcibly shaved while they were imprisoned in Guantánamo Bay (all four have since been released) named, among others, former Secretary of Defense Donald Rumsfeld and retired Gen. Richard Myers, former chair of the Joint Chiefs of Staff.

As Eric Lewis, an attorney for the four, put it: “The upshot of the Justice Department’s position is that there is no right of detainees not to be tortured, and that officials who order torture should be protected.”

Even when the Obama administration has seemed to take positive steps to turn back some of the Bush administration’s abuses, the full picture is more complicated.

So, for example, civil liberties advocates applauded Obama’s executive orders to close the U.S. prison camp at Guantánamo Bay, affirm detainees’ right to habeus corpus and instruct that prisoners be treated according to the Geneva Conventions when interrogated by U.S. officials. But it turns out that these orders have wide loopholes.

The order on interrogations, for example, only applies to prisoners “in the custody or under the effective control of an officer, employee or other agent of the United States Government, or detained within a facility owned, operated or controlled by a department or agency of the United States, in any armed conflict.”

That formulation would allow the use of torture by other governments’ security forces operating on orders from the U.S.–under, for example, the “extraordinary rendition” program used by the Bush administration to evade the law by sub-contracting torture to to U.S.-allied regimes.

In addition, the order demands that the CIA close “as expeditiously as possible” any of its detention centers, but says nothing about whether the FBI, Defense Department or any other U.S. body–or private contractors such as Blackwater–may run such facilities. As Professor James Hill noted, “This order contains loopholes big enough to drive a FEMA camp train through them.”

Likewise, in February, it seemed like a positive sign when Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the “state secrets” privilege to have lawsuits thrown out.

But according to the Associated Press, on the same day that Holder announced his review, Douglas Letter, an attorney for the Justice Department’s civil division, cited the same “state secrets privilege in asking a federal appeals court to uphold dismissal of a lawsuit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations where they would be tortured. Three times, Letter assured the judges his position had been approved by Obama administration officials.”

To take another example, earlier this month, the media reported that the Obama administration had dropped the term “enemy combatants” as a justification for detaining terrorism suspects without trial.

But as the New York Times reported, “[I]n a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects [at Guantánamo Bay] without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration.

“The filing signaled that, as long as Guantánamo remains open, the new administration will aggressively defend its ability to hold some detainees there.”

As Glenn Greenwald put it, “[T]he Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes–designed to generate headlines misleadingly depicting a significant reversal (“Obama drops ‘enemy combatant’ label”)–while, in fact, retaining the crux of Bush’s extremist detention theory.”

There is no “middle ground” on these questions. Those who justified, condoned, participated in and ordered the torture of detainees should be held accountable–starting with George W. Bush. Citizens should have a right not to be spied on by their government. Detainees should have rights under international law, including the right to a trial.

But the Obama administration isn’t taking anything like a principled stand on these questions.

On the contrary, while it wants to change the popular perception of federal policies on civil liberties, the evidence is mounting that the Obama administration is putting a new face on many of the same abuses we’ve been living with for the past eight years.

13 comments on this article so far ...

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  1. BARB said on March 27th, 2009 at 1:17pm #

    As far as Obama……and his Administration of Washington insiders and recycled Clinton WH personnel…..”The lesser of two evils is still evil”.

  2. John S. Hatch said on March 27th, 2009 at 1:22pm #

    There is also the case of Binyam Mohamed, a British resident scooped in Afghanistan and sent to Bagram and then Guantanamo. He was tortured by Americans in various ways, including having his genitals sliced with a scalpel.

    The Obama Administration threatened Britain with a cessation of intelligence cooperation if a British court released information about Mr. Mohamed’s treatment. The cowardly British government complied.

    Failure to bring the Bush Administration criminals to justice will doom the Obama Administration. So far it doesn’t look good.

  3. rg the lg said on March 27th, 2009 at 1:56pm #

    Just because O’Bama is in, does NOT mean that the US is out. The empire must be preserved at all costs.

    The whole economic package (whether Bushian or O’Bama-ite) is designed to ‘keep taxes low’ and ‘benefits high.’

    USans are, myself included, so rottenly spoiled that even the threat by China and the Europeans to shift the world exchange currency to something other than the almighty dollar is meaningless.

    We want what we want at any cost (to our descendants) … hopefully the spawn of my loins will remain childless. Let some other jerks spawn pay my freight! All done, of course, in the same manner as the rape of wall street by those ‘in’ the markets.

    Ah well, we sow what we reap …

    RG the LG

  4. bozh said on March 27th, 2009 at 3:47pm #

    there is only one constitution, cia, fbi, city police, senate, WH, congress, bank, army, judiciary, policy, and USA.
    all these entities are aspects of a whole: US governance. so, whether US gets a bit/lot poorer or richer, USA remains.

    even if US weakens by 50% , it wld still be by far the strongest empire in the world; perhaps not forever, but long enough to obtain much, much more territory.
    after all, nations wage wars chiefly or solely for territory an dits goodies.
    people are lead to believe that nations wage wars because enemies are demonic, perillous, terrorists, and myriad other rationalizations, but thousands of wars thus waged prove that that is just a useful strategem. and it had worked everytime. tnx

  5. Tennessee-Chavizta said on March 27th, 2009 at 8:10pm #

    Americans after 8 years still believe in the Al Qaeda bullshit. The cause is lack of scientific reasoning in the majority of americans

  6. Tennessee-Chavizta said on March 27th, 2009 at 8:16pm #


    according to class-psychology why would a middle-class person who is earning like 60,000 a year (1000 a week) would want a total change of US wars, Constitutional-reform, etc. Remember that economically stable people think that any change would decrease their monthly incomes

    so what happens is that the haves jones middle classe jones, are hardcore democrats and republicans to the bone. They would do any thing to crush, trash and destroy any potential candidate that is an electoral threat of Obama or Palin in 2012. Against Ron Paul for example or against Nader

    What the conspiracy-theory folks, the socialists and the libertarians need to do is to unite into a united front composed of Ron Paul, green party, bob bar, Cynthia Mckinney etc.

  7. Deadbeat said on March 27th, 2009 at 8:44pm #

    T-C writes…
    why would a middle-class person who is earning like 60,000 a year (1000 a week) would want a total change of US wars, Constitutional-reform, etc. Remember that economically stable people think that any change would decrease their monthly incomes

    As a “Socialist”, I would think that your definition of “middle class” would be much different than ascribing that label to someone “earning” $60,000/year. I would argue if that person is working a job they are hardly “middle class” but is better described as working class. The wealth is very much concentrated in the upper 5% of the population.

    The problem is that many among the working class are totally ignorant of their class interest. They have been indoctrinated into embracing their meager privileges. However many within the working class are not imagining how rich and freer their lives could be under a system with greater economic equality and justice.

    Many among the working class has been indoctrinated into embracing “competition” and “individualism” and “zero-sum” thus they are more fearful of what some poor and brown and female and gay and etc is getting than changing the nature of the system. They fear that equality means losing rather than gaining.

    What the conspiracy-theory folks, the socialists and the libertarians need to do is to unite into a united front composed of Ron Paul, green party, bob bar, Cynthia Mckinney etc.

    This is unlikely to happen. Just take a look at the Left. The Left has been unable to form a united front and they should naturally be in a position to offer real solution and a real vision. If the Left cannot form a united front then an alliance among the grouping you cite will not be form because of their diverging political views. The key to building solidarity is TRUST rather than the idea of “the enemy of my enemy is my friend”. Such a “coalition” will easily fall apart.

    Thus the real analysis MUST begin on the Left and what is really needed is an analysis of why the Left is in such a sorry state.

  8. Andres Kargar said on March 27th, 2009 at 11:17pm #

    Forget about elections. The project to invade and dominate the Middle East, torture the victims of this invasion, and eavesdrop on the American people is the project of the American ruling classes. Democrats and Republicans alike (with minor differences in tactics) have no choice but to enforce and follow the policies of the Empire.

    Elections do not bring down the owning classes, but organizing could. There is an entire army of the unemployed that need to be organized and mobilized. Who is organizing those who have lost their homes and their livelihood? Citizens arrest of the banksters and the CEOs and free-market politicians who have brought such a calamity to millions upon millions of American (not to mention people of other countries) should be in order. How about organizing citizens arrest brigades?

    When Geithner’s bail-out of Wall Street fails and everything collapses, will we accept a fascist takeover of America or are we going to act now?

  9. mary said on March 28th, 2009 at 5:18am #

    It was both chilling and depressing to hear Obama announcing the expansion of his ‘war on terror’ into Pakistan. The rhetoric was enhanced and Clinton and Gates were nodding sagely in agreement. Ghastly people. Have no lessons been learnt from Iraq? How many more olive skinned innocents are going to perish? And how can a busted flush afford the $3 billion per month that this new horror will cost?

  10. mary said on March 28th, 2009 at 5:26am #

    There was this comment about Obama on Craig Murray’s blog. Can anyone enlarge about this BIC outfit?

    “Since no one else has mentioned it, I shall.

    Upon leaving college Barack Obama spent two years with a firm by the name of Business International Corporation. This has been widely identified as being a CIA front company with even its own founder confirming CIA links. And honestly what sort of name is ‘Business International Corporation’? If the naming brief had been ‘must be meaningless, bland, and instantly forgettable’, it couldn’t be improved upon.

    Apparently BIC thought so much of young Barack that they paid off his entire student debt. That was nice of them don’t you think?

    Astoundingly in Obama’s autobiography, those two years of his not particularly long life, warrant a single paragraph. Or was it a single sentence? I can’t recall now.

    Somebody tell me that that’s not weird.

    Still it’s better than the ten year long blank space that George Bush had on his resume. Mind you, between ten years spent on cocaine, and two spent at a CIA front company, I’m not sure which is scarier.”

    On Obama – Making Your Mind Up

    I should add thanks to Nicole Colson for this article. Very often we talk amongst ourselves on this site. sometimes completely off the topic of the article, and the authors are not even referred to.

  11. Tennessee-Chavizta said on March 28th, 2009 at 7:47am #

    Deadbeat: I think that we cannot blame the left. The US left has done more than it can in this US fascist anti-freedom of speech empire. I think that the reason of why the USA left is so weak and divided, is that USA was founded by libertarians-right wingers, with a libertarian individualist education, economic and political tradition and system. And that’s one of the major reasons of why the US left is so weak. Just imagine that a country of 300 years of libertarian individualist Adam Smith ideology and education is real hard to become socialist.

  12. bozh said on March 28th, 2009 at 8:09am #

    the Left in Spain had brought its troops back home. in nov ’08, the Left did not even vote for healthcare for own people!
    so where is this Left in US! is it just 1mn strong or less? the Left in canada comprise about 20-25% [4-6 mn] of the pop but our troops are still in afgh’n.
    it is also likely that the Left in US is more diluted by closet socialists than the Left in canada.
    or does one think uncle wld suffer in his own backyard a second opinion? tnx

  13. Brian Koontz said on March 29th, 2009 at 5:27pm #

    “so where is this Left in US! is it just 1mn strong or less?”

    I’ve met one progressive in my locality (near South Bend, IN) and know of others (to varying degrees progressive). I’ve met zero anarchists and zero leftists of other stripes. Note that “progressive” is a centrist position, maybe center-right, as it supports the status quo, including capitalism and imperialism, merely tweaking that system for one or another pet cause (such as gay rights or ending the war in Iraq).

    I’ve met hundreds of libertarians. Most “poor” Americans I know are libertarians, often supporting freedom of capital more so than freedom of people, although most only have vague notions of all of the associations of their beliefs.

    Most people I meet are so politically ignorant and ignorant in general they can’t even be politically classified. They have no problem voting however.

    There is no functional left in America because Americans simply are not on the left, with rare exception. That’s quite predictable, as America is the heart of the global empire, thus the most pro-capitalist and pro-wealth accumulating populace in the history of the world.

    It’s easy to create a totalitarian society in the US. Most Americans accept such a thing as long as they believe it will increase their own wealth. Americans always have and always will value wealth far more highly than they value freedom or liberty. I’m not sure that Americans know what freedom is anymore.

    Here’s an experience I had a couple days ago that wraps American society up in a nutshell. I was talking with an employee of Meijer’s, a large retailer similar in type to Walmart. This employee is one step above (in the corporate hierarchy) the bottom. This employee classified herself as “management” and issued an anti-union statement which could have come from the mouth of a CEO.

    This employee works 50+ hours a week and does little outside of work. Certainly she has no time or inclination to end her ignorance. This is a typical American.

    Another example – I called a couple minimum wage workers “wage slaves” and they laughed, incredulously.

    The American – blissfully ignorant until the very end.