CIVIL LIBERTIES UNDER OBAMA (CONTINUED)
by Glenn Greenwald
THEN THERE'S the issue of one of the most controversial aspects of the Bush assertion of executive power, which is the version of the state secrets privilege that the Bush presidency developed and pioneered. It's a somewhat technical doctrine, but it's critically important in terms of how it was being used, and how it's continuing to be used--because it basically destroys the rule of law, literally.
The state secrets doctrine was used once starting in 1950s and then applied through the next several decades. It was a doctrine that said that in certain judicial cases involving national security, some documents may be so secretive that even though they're relevant to the litigation, even though they're relevant to the case, even though in all other instances they would be allowed to be used, these documents are so sensitive and risk triggering the disclosure of important state secrets that they can't be used in the case.
What the Bush presidency did was it converted this doctrine from a document-specific privilege that said certain documents can't be used. They developed a new theory that said certain topics are so secretive that they cannot be the subject of litigation, even when the president is accused of breaking the law. That was basically the tool that the Bush presidency used to shield itself from any judicial review for its actions, even the most illegal ones.
The Obama adminstration has continued this doctrine to the point where policies that Obama once condemned as blatantly criminal, like illegal eavesdropping and rendition and torture, are now, under his administration, declared to be such vital state secrets that they cannot even be the subject of judicial review. So even if the President broke the law, he can't be put in court and have a court find that what he did was illegal, because what he did was too secret. It removes the president from the rule of law.
Then there are two policies that are brand new for the Obama administration--ones that didn't exist under the Bush presidency. The first of these is the idea that the president has the right and the power--and not just in theory, but it's actually a power that he's exercising--to target American citizens not just with eavesdropping without warning, the way that Bush did, and not just with detention without due process, the way that Bush did, but with assassination.
The Washington Post in January of 2010 reported that there were four Americans on Obama's list that he has declared, without any due process to be terrorists, who the CIA is not just permitted, but instructed, to hunt down and murder. One of them is Anwar Al-Awlaki, a U.S.-born citizen in Yemen, who the U.S. government hates because he speaks effectively to the Muslim world about the violence that the U.S. commits in that part of the world, and the responsibility of Muslims and the need for Muslims to stand up to this violence. The U.S. hates him because this message is resonating.
So the solution is not to charge him with crimes, because he's not committing any crimes--because you have the First Amendment right to say the things he's saying. It's not even to detain him without due process. They're not bothering with that--they're trying to kill him. They've shot cruise missiles and used drones on at least two occasions in the last year to try to kill this U.S. citizen without due process. Not on a battlefield, but in his home, in his car, with his children--wherever they find him. This policy, this power, is one that the Obama administration has asserted for itself in a way that George Bush and Dick Cheney never did.
The other policy that is brand new is one I referred to earlier as--and this is a literal description--the war on whistleblowers that is taking place in the United States.
The reason why this is so important, is because if you combine the extraordinary secrecy powers of the U.S. government that I just talked about with an unbelievably subservient establishment media that won't disclose any facts or truth without getting permission from the U.S. government, with very rare exceptions, then whistleblowing is one of the few very avenues left that we even have to learn about what our government does. That's why there's a war on whistleblowing. Because it's one of the few threats left to the U.S. government's secrecy powers.
The Obama administration trying to criminalize what Wikileaks is doing. There is a very aggressive grand jury under way in Northern Virginia to try to turn what they're doing into a crime, even though all it is really is the core of investigative journalism, revealing the secrets of the world's most powerful corporate and government factions. If that's turned into a crime, then meaningful transparency and journalism are dead.
But they're also doing a whole variety of other things, like trying to invade the social networking communications of anyone even who is suspected of supporting Wikileaks. They've even gone so far as to execute a policy of detaining anyone they suspect of being associated with Wikileaks at airports when they try to reenter the country.
These are American citizens. And they not only detain them, but they seize their laptops and other electronic devices, like thumb drives and the like, memory drives. They just seize them and copy their content. Sometimes they don't return them, and sometimes they return them after a couple months, all without any form of judicial oversight or search warrant. They literally go through and do it routinely. It's a form of pure harassment.
Then you add together things like the drastic increase in surveillance powers that the Obama administration is seeking--the demand that Internet companies not be allowed to construct networks without giving the government a back door into the networks in order to engage in surveillance, and the dictate from the president that Bush officials who got caught breaking the law in a variety of ways not be prosecuted. When you combine all these policies and a whole bunch of other ones that I'm not going to talk about, what you really do see is not just--as the individuals I began by quoting have acknowledged--the continuation of Bush policies, but an aggressive expansion of them.
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WHAT'S REALLY quite amazing about it is that these policies really can't be more antithetical to core guarantees of freedom as set forth in the constitution. It's amazing the Tea Party movement began the session of Congress by reading from the Constitution very melodramatically. They seem to think that things like providing health care to citizens is an offense to the Constitution, even though you can't find anything in the Constitution that suggests that's true. And yet all of these policies that are literally the very powers that the Constitution expressly says cannot be exercised, don't seem to bother them, or very many other people at all.
If you look, for example, at the Fourth Amendment, what the Fourth Amendment says is "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated." And yet you have the Obama administration literally taking American citizens and detaining them, and seizing their laptops and copying the contents and storing them, without a whiff of probable cause or a search warrant.
Or you look at the Fifth Amendment--what it says is "No person shall...be deprived of life, liberty or property without due process of law." And yet we're allowing the government to target American citizens for murder, the ultimate deprivation, without any form, or even a pretense, of due process.
Or you look at the Fourteenth Amendment and its guarantee of equal protection under the law, and you see that President Obama is shielding criminals in the Bush administration from lawbreaking through decrees of immunity at the same time that the United States builds the largest and most merciless prison state in the world for even trivial offenses. A more violent breach of the equal protection clause can't be really imagined.
You really do wonder that if we allow these sorts of things--these kinds of breaches of basic constitutional freedoms without much backlash or objection--what is it that we would object to? What would trigger a real backlash? That, I think, is an important question to answer--to ask and answer.
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SO ONE of the things I want to do to start to close the talk is to discuss what I think are the implications of this continuous and now fully bipartisan assault on civil liberties. It shouldn't really be necessary to talk about the implications of the harms of violating civil liberties because violations of civil liberties are wrong unto themselves. It doesn't matter what the implications are. It doesn't matter what the benefits are or the harms are. Putting people into cages without due process or trying to kill them without letting them have an opportunity to defend themselves are things that are inherently unjust and tyrannical.
So it doesn't much matter what the consequences are in term of proving that we shouldn't be doing these things. But the consequences are extremely serious in my view, and so I do want to spend a few minutes highlighting what I think are the most significant ones.
One of them is one that I already talked about--which is the idea that by having a Democratic president adopt these policies, it's converted these things into bipartisan consensus.
The way American political discourse works in established media circles is that if Republicans and Democrats agree on a certain proposition, it no longer gets debated. It's simply removed from the realm of what's discussed. If you ask journalists to this day why they didn't, for example, do a more diligent job of subjecting claims in the run-up to the Iraq war to critical scrutiny, what they'll tell you is that there were no Democrats calling them up and objecting or complaining to them. There was no disagreement between the two parties. That's what defines what journalists believe is worthy of conversation.
What you also have is huge numbers of people who are so loyally devoted to one of the two parties that even with policies they spent years screaming and ranting and raving about as horrendous and horrific and an assault on freedom, the minute their party adopts those policies, they will become the most vigorous defenders of them.
I know from writing about these things. I spent years having virulent arguments with followers of George Bush and the Republican Party. But almost always now, when I critique these policies, the defenders who pop up to justify them are not Republicans at all, but are Democrats. That has really changed the scope of how these policies are discussed.
The second implication that I think is critically important and not appreciated very much at all is that when the government systematically proves that it is both willing and able to transgress the limits it is supposed to be subjected to--supposed to be because when the people got together to form the country, they said "we consent to your authority as long as you honor and respect these limits"--once a government is able and willing to systematically cross those lines without any real consequence, what arises is a climate of fear in the country.
That's not just the outcome, but the purpose. I just want to talk about a couple of instances where this climate of fear has become really visible to me.
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I SPENT a lot of time over the past year writing about WikiLeaks. I first started writing about WikiLeaks before most people had heard of it--before there were very many disclosures that made news in the United States, even before the collateral murder video it released showing the murder of civilians in Iraq by U.S. helicopters.
I learned about WikiLeaks because there was an article in the New York Times that described this top-secret Pentagon report that had talked about WikiLeaks and identified them as an "enemy of the state," literally. And ironically and appropriately enough, this report got leaked to WikiLeaks, which then put it on their website.
The New York Times article was very vague. It just talked about how the Pentagon thought that they were a huge threat, and the Pentagon was talking about ways to destroy WikiLeaks by planting fabricated documents with them, by exposing and invading the confidentiality of their relationship with their sources, by destroying their credibility. I didn't know very much about WikiLeaks at the time, but the fact that the Pentagon viewed them as an enemy of the state and was seeking to destroy them was enough for me to believe that they warranted a lot of attention and even support.
I then started looking into WikiLeaks and found that they had actually had some extraordinarily impressive achievements in terms of bringing transparency to very powerful factions and exposing corruption. I wrote a long piece about WikiLeaks, I wrote about why they deserved support, and I interviewed Julian Assange at the time. I posted the lengthy discussion that I had had with him, the audio of it, with this article that I wrote about WikiLeaks, and I encouraged everybody to donate money to WikiLeaks because they were suffering some budgetary constraints and wanted to expand their staff and do a lot of other things they weren't able to do because of that.
I had a link to a page where you could donate to them. In response to this article that I wrote, I had enormous numbers of people, readers and others, who told me in various ways--through e-mail and the comments section, or when they saw me at various events, and in other ways--that they agreed with everything I had said about WikiLeaks. They, too, thought that it was an endeavor highly worth supporting, but they were actually afraid to donate to WikiLeaks because they thought that if they did, they would end up on a government list somewhere--or even at some point be subjected to some form of criminal liability for aiding and abetting what could become a terrorist organization.
At the time, I didn't think that those concerns were overwhelmingly valid, because this was an organization that hadn't been declared a terrorist organization. But what really struck me was that these were people who were not prone to conspiratorial or paranoid thinking. These were very sober individuals who were literally saying that they were afraid to exercise this right that they had to donate to an organization. To me, that was incredibly eye-opening.
WikiLeaks is an organization that has never been accused of, let alone convicted of, committing a crime. Yet there were huge numbers of citizens, American citizens, petrified of exercising what is undoubtedly their Constitutional right of freedom of assembly and freedom of association and their First Amendment free speech rights to donate to an organization whose political activism and political cause they support--because of a fear that the government would somehow punish them.
That level of fear was really striking to me. And it became even more striking to me as I began to get to know a lot of people who work in the WikiLeaks organization. I spoke with a lot of them and met with a lot of them, and what all of them said, almost to a person, especially foreign nationals, is that there are a lot of people who were working very intricately and importantly in WikiLeaks who have stopped working at all with WikiLeaks--who are no longer willing to do so. And some of the people who continue to work there are very afraid, even though they continue.
What they will tell you, to a person, is that what they fear the most is not that their government is going to charge them with some sort of a crime or indict them. They say that there is a possibility that might happen, but they don't fear that, because they'll get lawyers and they believe they did nothing wrong. They'll defend themselves, and they believe that they will ultimately prevail.
What they fear the most is that one day, their government is going to knock on their door and say that the United States has requested your extradition--the way the United States is clearly trying to do with Julian Assange. Having seen what the U.S. does, especially to foreign nationals accused of jeopardizing the national security of the United States--the legal black hole that we've created for people--that is what they are petrified of the most: of ending up in the grip of the American justice system.
The fact that we have spent decades lecturing the rest of the world about what justice requires and what the rule of law means, and declaring ourselves the leader of the free world, and yet people around the world are most petrified about ending up in the American justice system, speaks volumes about what the state of civil liberties has become. I think what's really important to understand is that this isn't just an implication--this is the purpose of why these things are being done.
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I WROTE about Bradley Manning and the incredibly oppressive and inhumane conditions under which he was being detained--I wrote about that in the middle of December. And I know that a lot of people's reaction to it--even people who were horrified by it--was an inability to understand why the Obama administration would do that. It seemed counter-productive. Even their State Department spokesman, a very loyal government official named P.J. Crowley, stood up in public and said this is an incredibly stupid and counterproductive thing to do, just for the prosecution itself.
Why would they be doing it? The same question gets asked about why they're trying to criminalize WikiLeaks. Why would you try to criminalize WikiLeaks? What good would that do? Even if you put Julian Assange in prison for life and destroy WikiLeaks, the technology and the template have been created for how these secrets are going to be leaked. You cannot possibly stop it.
The answer to both of those questions--why would they do it--is the same answer to the question of why the Bush administration would create a worldwide regime of torture and put people on a Caribbean island in orange jumpsuits and shackles and show the world what it is that we're doing? That, too, seems counterproductive.
The objective to all this behavior is to send a message to anyone who would dare impede the will of the United States government--or to prospective would-be whistleblowers who would discover corruption, deceit and illegality and think about exposing it to the world--that there are no limits to what we can do to you and what we will do to you if you try and impede us in any meaningful way.
It's a campaign of intimidation--of thuggish intimidation to create this climate of fear. And it's worked. What this climate of fear really does is change the relationship between the populace and the government. Because when the population fears the government--fear grounded in the knowledge that this government can transgress any limits without consequence--it's no longer necessary to take away rights formally.
What this climate of fear does is it induces people to relinquish their rights on their own. They become afraid to exercise them. And rights that people are afraid to exercise are worthless. You can offer all the array of rights in the world, but if you create a climate of fear that's potent enough and strong enough, it no longer makes a difference what rights you purport to offer. That's what I think this assault on civil liberties, more than anything else, has really accomplished.
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THE LAST implication that I want to highlight in closing is that when you have a government and a political culture that constantly inculcates its citizenry with fear--and fear has always been, and as this case shows, continues to be the primary tool that's used to justify this assault on civil liberties--what eventually happens is the character of the citizenry starts to change. It starts to change if the assault continues long enough, and if this fear is inculcated long enough, it changes irrevocably, so that the national character becomes radically different. It becomes fundamentally transformed.
One of the most vivid instances where this really was driven home for me was in the wake of the killing of Osama bin Laden. What happened there was there were all kinds of legalistic debates about whether or not this was a legitimate act of military force and whether or not the U.S. had the legal right to do it. I want to set all those debates to the side. What really struck me the most was the reaction on the part of the citizenry--the celebratory chest-beating joy that came from this accomplishment.
To me, this was highlighted most effectively by what President Obama said when he announced the killing at roughly 10 p.m. at night when he addressed the nation. This sentence in particular really struck me. He said, "The cause of securing our country is not complete. But tonight, we are once again reminded that America can do whatever we set our mind to. That is the story of our history."
Now the reason I found that so striking is because in principle, there are things that you can find in American history that prove that assertion to be true. We sent a man to the moon, we developed cures for diseases that saved lives around the world and continue to, there were technologies developed that have improved people's lives, there were corrections to the evils that were embedded within the American founding that constituted genuine progress--the emancipation of slaves, the ending of Jim Crow, the enfranchisement of women and non-property owners and the like. These are things you can point to in American history that can justify nationalistic pride.
But what's so interesting is there have been very few instances over the past decade, or even several decades, that have really justified this kind of sense of national unity and nationalistic self-esteem.
And what was amazing to me was that what we're now reduced to as a nation--what now gives us nationalistic purpose, what in Obama's words proves that "we are once again reminded that America can do whatever we set our mind to"--is that we can ferret somebody out and hunt them down and riddle their skull with bullets, and then dump their corpse into the ocean. That has become the thing that now enables us to justify our nationalistic sense of achievement and pride. That, to me, really reflects the degradation of the national character of a country that is inculcated with fear, and that suffers systematic assaults on our civil liberties.
One of the things I think is interesting, and I just want to close with this, is that these policies, appropriately enough and happily enough, actually contain within them the seeds of their own destruction. One of the things that you see throughout history--one constant in history--is that empires cannot sustain themselves. Imperialism is unsustainable, militarism is unsustainable and a population that is inculcated with fear and that purposely gives up its own rights becomes a citizenry that is paralyzed and incapable of continuing to propel national prosperity.
So I think that one of the things that you're seeing--as the United States declines in strength and influence and other countries increase in that influence--is an effort to hold onto these policies as tightly as possible. Because declining empires always cling to militarism and civil liberties assault more tightly at the end than they do anything else. In part, that's what enables leaders to remain in power. If you can continue to scare the population enough with threats of foreign evil and foreign villains, they will overlook the raping and pillaging taking place domestically that these leaders are engaged in, and get behind their leaders.
And more so, all of these policies that I talked about--the climate of fear that they enable, the ability of the government to exercise even the most tyrannical powers--are necessary to prevent a citizenry from getting too restive and from becoming too aggressive in its assertion of dissatisfaction. Yet if you look at interviews with and discussions with Osama bin Laden and other members of al-Qaeda, one of the things that they talked about was that their goal was to trigger the United States into doing exactly what it ended up doing. They knew that a single attack on U.S. soil, very minimal in scope compared to the level of violence that we bring to the world and have been bringing to the world for decades, would trigger these bankruptcy-inducing policies. And that's what you're seeing.
Ironically, the only thing that could really stop this kind of growing assault on civil liberties and the militarism that accompanies it is a weakening of the United States to the point where they're no longer sustainable. And the weakening is happening precisely because of these very policies.
A lot of times, if you're in the United States and you talk about a weakening of the United States, it's considered to be a thing that we want to avoid--that it's a very bad thing. But I think it's a very good thing. It's really the thing that I think will ultimately arrest these criminals. So with that, I thank you very much for listening, and we'll have a discussion.
Transcribed by Karen Domínguez Burke and Rebecca Anshell Song.
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