Obama’s Policy on Civil Liberties: Bush Lite?

Barack Obama entered the presidency as one of the most rhetorically pro-civil liberties politicians in recent memory. And shortly after taking office, he drew applause from friends of liberty for promulgating executive orders closing Guantanamo and CIA secret prisons, ending CIA torture, suspending kangaroo proceedings at military tribunals, and pledging more openness than the secretive Bush administration. Unfortunately, instead of prosecuting Bush administration officials, including George W. Bush, for violating criminal statutes against torture, illegal wiretapping of Americans, and other misdeeds–thus avoiding the bad precedent of giving a president a free pass on illegal acts–Obama appears ready to vindicate the prior administration’s anti-terrorism program by adopting Bush Lite.

Warning signs that Obama was softer on civil liberties than advertised came even before he took office, when as a Senator, he voted for blatantly unconstitutional legislation that allowed federal snooping into some e-mail messages and phone calls without a warrant. The Constitution implies that all government searches and seizures of private property require a judicially-approved warrant based on probable cause that a crime has been committed–with no exceptions mentioned, including for national security.


Obama’s nominees have said the administration will continue the CIA’s policy of “extraordinary rendition” of terrorism suspects–a euphemism for secret kidnapping without the legal nicety of extradition or any other procedural due process rights. Prior to the Bush administration, such government-sanctioned kidnapping was authorized only to return the suspects to their home countries. The Bush administration began using such renditions to abduct suspects and send them to third-party nations that practiced harsh torture–presumably to keep U.S. hands (relatively) clean. Leon Panetta, Obama’s CIA director, has said that the new administration will continue the Bush administration’s practice of rendition to third party countries and relying on those countries’ suspect diplomatic promises not to torture.

Also, Obama supposedly banned CIA torture by executive order, but such orders are not laws and can be reversed with the stroke of a pen. What’s worse, although CIA director Panetta has admitted that water boarding (simulated drowning) is torture, he has also asserted publicly that if regular interrogation techniques did not produce information from a prisoner suspected of being involved in an imminent attack, he would request the authority to use harsher methods.

In perhaps the most important of the civil liberties waffling, Elena Kagan, the administration’s nominee for solicitor general at the Justice Department, pledged to continue detaining indefinitely prisoners without trial, even if they were noncombatant terrorist financiers arrested far from a combat zone. Ominously, the Obama administration is stalling on taking a position on the even more important Bush-era policy of perpetually incarcerating “enemy combatants” without trial on U.S. territory. To stay within the U.S. Constitution, such vital habeas corpus rights, one of the pillars of the rule of law, should only be suspended by Congress in areas where combat has rendered the civilian courts inoperable–hardly the case in the United States during the never-ending “war on terror.”





Typically, in American history, any crisis–such as 9/11–causes an expansion of government power. After the crisis recedes, a public reaction to government excesses usually ensues–as now exists with Bush policies. Yet government power never quite recedes to its pre-crisis level. Unfortunately, what we are likely to see from a post-9/11 Obama presidency is that same historical phenomenon playing out.