A couple of weeks ago, the Democratic Party officially nominated President Obama for re-election at its national convention in Charlotte, North Carolina. Democrats hailed the three-day event as a triumph for the campaign, and it has led to President Obama opening up a clear, and some say insurmountable, lead over Republican candidate Mitt Romney. But perhaps the week’s biggest loser was not Romney, but Americans’ civil liberties.
For eight years under George W Bush, Democrats excoriated the former President and his administration for their brazen dismissal of many basic constitutional rights, and for much of Bush’s second term, it was often Barack Obama who was leading the charge. Instead, Obama has re-enforced many of them, and in the 2012 Democratic platform, most of the party’s previous positions were erased all together.
Privacy and whistleblowers
In 2008, when Democrats nominated Obama for president the first time, the official party platform took a strong stand on civil liberties. The document promised to “revisit the Patriot Act and overturn unconstitutional executive decisions issued during the past eight years”. But as president, Obama – who once criticised“federal agents poking around in our libraries” – pushed Congress to re-authorise three of the PATRIOT Act’s most controversial provisions without change. As the ACLU’s Kade Crawford explained the extension “allowed federal agents to continue secretly poking around not simply in our library records, but also in any other conceivable place where records about us are held – whether at our bank, our credit company, or our internet service provider”.
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In reference to George W Bush’s unconstitutional warrantless wiretapping programme, the Democrats in 2008 also declared, “We support constitutional protections and judicial oversight on any surveillance programme involving Americans… We reject illegal wire-tapping of American citizens.”
Yet the NSA’s power still largely remains intact, thanks to the FISA Amendments Act (FAA), which legalised much of the programme by weakening privacy protections for Americans communicating overseas. As a candidate, despite voting for the FAA, Obama promised to reform it as president. Now, the White House says their “top priority” is to have Congress renew it with no new privacy safeguards or oversight provisions. All this, despite the fact that a secret intelligence court recently ruled that on at least one occasion, the NSA violated the constitution.
In addition, Obama is using the controversial “state secrets” privilege in an attempt to block a lawsuit challenging Bush-era warrantless wiretapping filed by the Electronic Frontier Foundation (the organisation for which I work). Obama, of course, promised to curtail the use of the state secrets privilege as a candidate, but now uses it frequently.
Whistleblowers’ rights have also been casualty of Obama’s reversals. As the Guardian‘s Glenn Greenwald documented, in 2008 the Obama/Biden campaign lauded federal whistleblowers who expose government wrong doing, promising to “strengthen whistleblower laws to protect federal employees who expose waste, fraud, and abuse of authority in government”. But now, far from protecting whistleblowers, his re-election campaign is boasting that his administration has prosecuted leakers to the press twice as many times as every other administration combined.
Listening to Obama’s famous keynote address from the 2004 DNC – his springboard onto the national stage – Obama sounded like an entirely different politician. Then he argued, “If there’s an Arab-American family being rounded-up, without benefit of an attorney, or due process,” he said, “that threatens my civil liberties.”
Ironically, on the same day Obama gave his latest DNC speech this year, a federal judge in DC issued a ruling excoriating his administration’s recent decision to unilaterally restrict Guantanamo detainees’ access to attorneys, saying “this country is not one ruled by executive fiat”.
In fact, his administration’s position on due process has been the most controversial of his presidency. Last year, he signed the National Defense Authorisation Act (NDAA), which contains provision authorising the indefinite detention of terrorism suspects that could potentially be used against American citizens. Another federal judge recently blocked the implementationof that law, saying it violated both the free speech and due process clauses of the Constitution. The Obama administration has predictably appealed.
When it came to defending US drone strikes that have extrajudicially killed at least three American citizens in Yemen – including a 16 year old who has never even been accused of terrorism – the administration has tried to change the definition of “due process” all together. Attorney General Eric Holder put forth a unique legal theory, claiming “due process” and “judicial process” are not one in the same. Given the executive branch debated and weighed evidence against the victims of the drone strikes internally, due process was satisfied and they didn’t need a court, Holder explained.
This mangling of the founding fathers’ words led to widespread rebuke in legal circles, but it was satirist Stephen Colbert who most aptly summed up the absurdity of Holder’s definition: “Due process and judicial process are not one and the same. The Founders weren’t picky. Trial by jury, trial by fire, rock-paper-scissors – who cares? Due process just means there’s a process that you do.”
Will Obama ever change course?
To be sure, Obama’s Justice Department has shown admirable backbone on other civil liberties issues. After a series of incidents where local police around the country arrested or interfered with people recording police abuse, the DOJ sent a pointed letter to the Baltimore police department insisting citizens have a First Amendment right to record police activity in public. The Justice Department’s civil rights division has been vigilant in challenging so-called “voter ID” laws, which disproportionately prevent poor people and minorities from voting. They also sued to stop Arizona’s immigration law SB-1070, which was a thinly veiled attempt to legalise racial profiling.
But how can Democrats convince Obama to stop implementing practices he once condemned? One might look towards Obama’s evolution on gay rights for the solution. In this area, his actions towards basic civil rights have been the most laudatory. He ended the “Don’t Ask, Don’t Tell” policy in the military, and even became the first president in history to voice support for gay marriage.
It wasn’t always this way, however. To the shock of many supporters, Obama’s Justice Department initially defended the discriminatory Defence of Marriage Act in court. But when Obama faced an aggressive and coordinated campaign from gay rights groups – who vocally called the president on his misdeeds and threatened to withhold campaign contributions if he did not move the ball forward – Obama changed course and now refuses to defend the law. As the Washington Post‘s Bernstein pointed out, “Pro-gay marriage groups… refused to drop the marriage issue, even when they scored another victory.”
While certainly when the all-purpose scare mongering phrase “national security” comes into play, politicians are always more cautious, but as Bernstein said, “Indeed, there’s a lesson here for activists and organised groups: liberals tend to get what they want only when they fight effectively for it.”
After all, in a few months, it could very well be Mitt Romney who will wield the powerful weapons Obama has created. If only for that reason, it’s imperative the President’s supporters push him to change course as hard as his critics.
Trevor Timm is an activist and writer for the Electronic Frontier Foundation.
Follow him on Twitter: @trevortimm