Taking Liberties: The War on Terror and the Erosion of American Democracy (36 page)

Obama’s views on the proper role of Congress and the courts, like his views about rights, have been more nuanced than his predecessor’s, at least in theory. In one of his first Executive Orders, Obama vowed that his administration would be more transparent, reversing the previous administration’s grudging “Ashcroft rule,” which discouraged agencies from disclosure. Instead, Obama told federal agencies that they should presume that information about what they were doing should be shared with the public, even if it is embarrassing.
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Consistently with that promise, President Obama agreed to release controversial Office of Legal Counsel memos on the subject of torture, in response to a Freedom of Information Act (FOIA) lawsuit.
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But he then decided that he did not want to comply with another FOIA decision ordering the release of photographs portraying United States–connected victims of torture in detention facilities in Afghanistan and Iraq.
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Obama explained that even though the photographs were clearly of great public interest and related to issues about controversial interrogation methods (which he had banned), he had decided that releasing the photos could be harmful because they might provoke anti-American reactions. Because defying the order would have amounted to contempt of court, Obama enlisted Congress to change the law on which the order was based. Congress readily agreed to amend the Freedom of Information Act to prevent any court from reviewing a Secretary of Defense’s decision not to release photographs to the public.
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The basis for this exception to the rule of transparency is troubling. The more outrageous the government’s conduct, the more reason to keep it concealed because it might provoke anger. Therefore, the public is guaranteed the right to hear about innocuous activities and minor mistakes but not about government conduct that is truly shocking. Congress agreed with Obama, as it had with Bush, that it is best to avoid the courts on issues like this and allow the executive branch to make a unilateral decision.

Backpedaling on the issue of transparency aligned Obama more closely with the Bush/Ashcroft philosophy of presidential prerogative. But Obama defended himself against that accusation in a 2009 speech at the National Archives, one of his few major speeches on national security issues:

Here’s the difference, though: Whenever we cannot release certain information to the public for national security reasons, I will insist that there is oversight of my actions—by Congress or by the courts.
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For example, although Obama’s Justice Department had decided to keep relying on a version of the state secrets privilege that would shut out the courts, Obama promised that he would voluntarily report to Congress when the privilege was invoked.
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The promise is encouraging, but it remains to be seen whether Congress or the courts will really be treated as equal partners by Obama or by any future Terror President.

The Sleeping Watchdog

The Constitution establishes Congress as the representative of the people. Whether a president insists on or resists congressional oversight, Congress is supposed to provide a check and not just a rubber stamp. It was as easy for Obama to get Congress to collaborate in shrinking FOIA as it had been for Bush to get Congress to shrink other rights. The preceding chapters have shown how, during the Bush years, Congress failed to provide a real check on the president or to exercise meaningful oversight over agencies that were spying on Americans, harassing Americans at the airport, closing down charities, and making businesses jump through elaborate hoops. As previous chapters have also shown, executive agencies left to operate independently and in secret are not likely to do a good job of honoring rights. When the Justice Department’s Inspector General, Glenn Fine, was finally asked to study the airport watchlist system in 2008, he found that the list was riddled with errors and that the system did not provide innocent people with any effective way out. He also found that the agencies involved, accustomed to operating independently and focused on their mission, were dragging their heels in fulfilling mandates to develop more traveler-friendly procedures.
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When the same Inspector General eventually studied the FBI’s use of the self-help National Security Letters, his 2007, 2008, and 2010 reports found that allowing the FBI to operate independently and in secret had enabled a staggering number of abuses and misleading reports to Congress. In his September 2009 testimony before the Senate Judiciary Committee in connection with reauthorization of the Patriot Act, Fine strongly urged Congress to wake up and start holding hearings to find out how the FBI is using its antiterrorism powers, through “continual and aggressive” oversight.
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The 9/11 Commission agreed, describing congressional oversight in the first half of the decade as “dysfunctional”:

Of all our recommendations, strengthening congressional oversight may be among the most difficult and important. So long as oversight
is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need.
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Part of the reason for Congress’s failure to pay attention to the use and abuse of the post-9/11 powers it launched lies in partisan politics. Like so many other vexing issues, national security became a Republican versus Democrat issue. While the president and the majority of Congress were both Republican, there was a strong political disincentive for Congress to hunt for executive branch transgressions. When Democrats gained a majority, Congress ramped up oversight of the Republican president to some extent, leading to more Inspector General reports and more frequent hearings. Bills were introduced to reform National Security Letters,
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although they did not command a majority. But when a Democratic president took over and adopted Bush’s positions on issues like National Security Letters, Democrats in Congress who had been playing the role of critic were disarmed. There is little political advantage to reviewing antiterrorism strategies that people assume are keeping them safe, especially when a new Democratic president makes them his own. Commentator Glenn Greenwald points out that “by advocating for the continuation of so many Bush/Cheney policies, [Obama] weakened opposition to that approach.” He noted that Obama was not just following public will on issues concerning national security but was actually leading public opinion to greater approval of the Bush/Cheney policies.
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“[W]hat were once viewed as controversial right-wing, Bush/Cheney Terrorism policies have been transformed, under Obama, into bipartisan consensus.” Obama was converting emergency post-9/11 policies into “the New Normal.”
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New baselines are far less likely to be questioned once they have become familiar. The Patriot Act, as previous chapters have described, built incrementally on rights-diluting provisions in Bill Clinton’s 1996 Antiterrorism and Effective Death Penalty Act, which had come to seem normal by 2001. In 2012, when the FISA Amendments Act expires, will Congress take a hard look at whether this spying program, already over a decade old, should be continued, or will we have become accustomed to our reduced privacy and let the program slide into permanency? When now-entrenched Patriot Act provisions come up for renewal, is Congress likely to do anything more than tweak a few provisions—perhaps appeasing the vocal librarians or slightly easing the burden on nonprofit organizations? Congress is not likely to take on the job of seriously reexamining
the effectiveness and costs of antiterrorism strategies unless the voters want it done.

I have speculated that voters have not expressed more concern about those strategies because we have been kept unaware of the extent of their costs, and perhaps because we don’t really want to know if post-9/11 strategies promising to keep us safe are actually impotent. Fear is a powerful motivator. But certainly another reason Congress is not hearing more outrage from constituents is that the brunt of the impact of our post-9/11 program has fallen on Muslims, a minority in the United States practicing a widely misunderstood religion and easily stereotyped as resembling the 9/11 hijackers. The stories in this book show quite clearly that the people who have suffered the greatest collateral damage—pretextual arrests as “material witnesses,” actual rather than merely potential prosecution for posting links on a website or associating with watchlisted charities, mysteriously closed bank accounts, and
de facto
exile—are Muslims.
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The milder impact felt by non-Muslim Americans—loss of privacy, occasional cooptation as government agents, and embarrassing experiences at the airport—may seem to many like an acceptable bargain. This view, of course, discounts the deeper and less visible damage the New Normal is doing to our constitutional principles, to our democracy, and to our way of life. Nevertheless, as polling data suggest, people find it all too easy to bargain away liberty in the hope of gaining safety if the liberty belongs to someone else.
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Pew Center polls conducted between 2001 and 2006, for example, show that more than twice as many respondents were in favor of allowing airport personnel to do extra checks on passengers who appear to be of Middle Eastern descent than were in favor of allowing the government to monitor their own telephone conversations, e-mails, or credit card purchases. A
New York Times
/CBS poll in January 2006 showed that “respondents overwhelmingly supported [70%] email and telephone monitoring directed at ‘Americans that the government is suspicious of;’ they overwhelmingly opposed [68%] the same kind of surveillance if it was aimed at ‘ordinary Americans.’”
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A 2005 Gallup poll revealed that “[m]ore than half [of Americans polled] are in favor of subjecting all Arabs, including Arab Americans, to special security checks at airports” while only 48 percent favored allowing police to stop people at random on the street, and 46 percent favored requiring “Arabs” to carry a special ID.
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A Gallup poll conducted in January 2010 showed that 71 percent of those polled felt that those who “fit the profile” of suspected terrorists should be subjected to more intensive security checks before being permitted to board airplanes.
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Why give up a dragnet that might possibly catch someone dangerous unless you care about the innocent people who predictably will be swept up? Beneath the attitudes these polls reveal seems to be an assumption that “Arabs” or Muslims are presumptively guilty and that they are not like the rest of us. John Hart Ely, in his classic book
Democracy and Distrust
,
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points out that democracy is at its worst when it comes to protecting the rights of minorities—which is why politically insulated courts have an indispensable role to play in our constitutional democracy.

Secrecy and the Courts

One critically important reason the courts have not been more active in reviewing the constitutionality of the array of antiterrorism measures I have been discussing, as the previous chapters have shown, is the hydra-headed invocation of secrecy. The executive branch’s addiction to secrecy has had a devastating impact on the ability of the courts to do their traditional job of guarding rights and protecting minorities against discriminatory enforcement. To be sure, there are certainly aspects of the government’s antiterrorism activities that should be treated as confidential. But secrecy claims can be overblown—like the mosaic theory—and can sometimes amount to nothing more than cover-ups. Take the state secrets privilege. The Bush and then Obama lawyers have invoked this privilege, as already described, to keep cases out of court altogether, sometimes without even allowing the court to review whether an asserted national security concern is credible. Recognizing this “privilege” as the nuclear option of litigation, a number of judges have been reluctant to accept such a diminished role, and for good reason. One of the two cases creating the state secrets privilege,
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a 1953 case called
Reynolds v. United States
,
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is a perfect example of why the courts need to be able to evaluate national security secrecy claims.

Robert Reynolds, who worked for an Air Force contractor, was one of nine people who died in the crash of a B-29 airplane in Waycross, Georgia, in 1948. His widow, together with the widows of two of his colleagues, brought a wrongful death action against the government. The Air Force had investigated and written a report on the accident, but the government refused to allow Mrs. Reynolds to see it, telling the court that the plane had been testing a new missile guidance system and so disclosing the report was not in the public interest. Although the lower courts were not so tractable, the Supreme Court cooperatively agreed to dismiss the case in order
to preserve the government’s self-declared secrets. But when the report in question eventually was publicly released in 1996, it turned out that it did not actually contain any military secrets. It did, however, provide a great deal of support for Mrs. Reynolds’s claim that the government had been negligent: a record of serious pilot error, prior knowledge that the B-29 engines tended to catch fire, and a disgraceful history of maintenance and safety procedures. Under the cover of national security arguments, the government was simply trying to conceal its own negligence.
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