Barack Obama looked improbably younger then, before the strains of the Oval Office began to fully settle into his features. After only four months as commander in chief, he was prepared to end the “season of fear,” as he put it. It had been a reactionary period when the government made well-intentioned but hasty decisions based on alarm about another attack rather than foresight. U.S. officials and a compliant Congress had determined that antiterrorism ends justified nearly any means. Americans had abandoned cherished values as luxuries that they suddenly could no longer afford. So in May 2009, Obama stood in the National Archives, surrounded by the Republic’s founding documents—a reminder and a reproach—and made clear exactly where he stood.
“During this season of fear, too many of us—Democrats and Republicans, politicians, journalists, and citizens—fell silent,” the president said. To end that silence, Obama had in his first days in office banished torture and announced the closing of the prison at Guantánamo Bay within a year. He promised to create a new legal regime, consistent with the rule of domestic and international law, for suspected terrorists; to declassify more information in an era of renewed government transparency; and to disavow sweeping presidential powers. “If we fail to turn the page on the approach that was taken over the past several years, then ... we cannot stand for our core values,” Obama said. “Then we are not keeping faith with the documents enshrined in this hall.” It was a civil libertarian’s dream speech.
And what’s more, Obama seemed to have a mandate for this shift. Even President Bush said several times during his second term that he wanted to close Guantánamo. Then, in 2008, voters nominated two presidential candidates, Obama and John McCain, who opposed torture and wanted to close the U.S. military prison in Cuba. The Democrats’ new Congress would surely reject the politics of fear that had characterized so much of the counterterrorism debate in the post-9/11 years. A majority of Americans (51 percent) approved of Obama’s decision to shut Gitmo. Our government, finally, seemed ready to restore its age-old values.
It was a mirage. The springtime for civil liberties came and went, restoring a winter of state control. Today, Guantánamo remains. Government surveillance is more intrusive than ever. Obama—acting as judge, jury, and executioner—recently proclaimed the power to assassinate suspected terrorists around the world, including American citizens. His administration, which promised a new era of transparency, has charged more whistle-blowers for leaking classified information under the Espionage Act than did all of its predecessors combined.
Outside the White House, Republican presidential candidates have defended “enhanced-interrogation” techniques such as waterboarding, and Mitt Romney even wants to double the size of the military-run prison at Guantánamo. Congress, which once seemed poised to shutter it, has instead passed bipartisan law after bipartisan law ensuring its indefinite operation. The recent defense reauthorization, which Obama signed, can be read to allow the unlimited military detention of American civilians suspected of terrorism. And Americans continue to worry enough about another terrorist attack that more of us than before (68 percent in 2008; 71 percent last year, according to the Pew Research Center) believe that torturing suspected terrorists can sometimes be justified. Forty percent (down from 43 percent in 2006) still believe that it’s necessary to give up civil liberties to curb terrorism. Americans, it turns out, are still afraid.
After multiple elections, Republican and Democratic administrations and Congresses, and a decade into the war against terrorists, no one can plausibly argue that the bright, shining mirage that Obama conjured in May 2009 reflects the country today. That United States was ready to grapple with terrorism as a manageable policy problem, not a political bludgeon. It was unafraid to prosecute terrorist suspects according to legal norms. And it was willing to subject its policies to oversight, checks, and balances. We’ve had the debate, and that vision of America lost. That’s not who we are anymore.
Earlier generations would be astounded by the privacy intrusions that Americans now tolerate. The government subjects citizens to full-body pat-downs and revealing X-ray scans at the airport; it proliferates cameras on city streets; and it scrutinizes phone calls and e-mails with correspondents overseas. (To say nothing of private-sector rollbacks such as the ubiquitous data collection practiced online.) The public seems unfazed even by news that local police departments will increasingly use surveillance drones.
Americans weren’t always so acquiescent. After the FBI and the CIA spied on antiwar activists and civil-rights advocates in the 1960s and 1970s, Congress passed the Foreign Intelligence Surveillance Act, requiring the government to seek warrants to monitor citizens’ private communications. It was a simple line of defense against government overreach.
The law’s post-9/11 odyssey exemplifies the retreat of privacy rights. In 2005, The New York Times revealed that President Bush had authorized the National Security Agency to intercept, without warrants, the private communications of millions of Americans. “We know that a two-minute phone conversation between somebody linked to al-Qaida here and an operative overseas could lead directly to the loss of thousands of lives,” Bush said in a news conference defending the program and asking Congress to legalize it. Rather than devise a process of rapid judicial review for such wiretaps, Congress gave Bush the FISA Amendments Act of 2008. This bill codified the government’s power to tap Americans’ international communications and even gave retroactive immunity to telecom companies that assisted in the earlier warrantless taps.
As a senator, Obama opposed the bill, but he reversed course as president, and his administration continues to fight a lawsuit by the American Civil Liberties Union that challenges the FISA changes. Federal law enforcement also adopted its own aggressive tactics to fight terrorism. The FBI radically expanded its use of informants to ferret out potential extremists—in some cases, by acting as agents provocateurs and trolling mosques in search of possible terrorists. Its elaborate “stings” ensnare terrorist wannabes whose dreams of jihad generally far outstrip their competence until government informants appear to furnish the means. (Somehow, not a single jury has seen this technique as entrapment.) The New York City Police Department, too, recently admitted to monitoring Muslim places of worship, based on no evidence of wrongdoing.
Obama “largely adopted the Bush administration’s wartime legal framework for his counterterrorism policies, which is why we have seen significant continuity in areas such as warrantless wiretapping and discriminatory surveillance,” says Hina Shamsi, director of the ACLU’s National Security Project. “Those are very dangerous powers, and if you are willing to trust President Obama with them, you had better also be willing to trust the next president and the president after that. Because in a war that, as defined by the government, takes place everywhere and potentially lasts forever, civil liberties will continue to erode.”
Although Obama championed transparency as a candidate, his administration has also cracked down on leaks of classified information to the press by whistle-blowers. It has prosecuted six such cases under the Espionage Act—more than all previous administrations combined. In one recent case, the Justice Department charged former CIA officer John Kiriakou for revealing the name of an agent who waterboarded Qaida suspect Abu Zubaydah. Civil libertarians had hoped that the White House would prosecute the interrogators; instead, it is prosecuting the suspected whistle-blower. “President Obama has simply perpetuated the secrecy regime put in place by the Bush administration,” says Jesselyn Radack, a former Justice Department ethics adviser who is director of national security and human rights at the Government Accountability Project. “If Bush was still carrying out those practices, liberals and progressives would be screaming in outrage about it. But they have hardly uttered a blip of criticism of Obama.” (The Justice Department says that revealing the identity of agents jeopardizes their lives, and that if prosecutions are more common than in the past, it’s because e-mail and other digital clues leave a clearer trail.)
Once again, the public has responded with indifference. Americans’ support for the Patriot Act, which authorized the government to collect domestic intelligence, grew from 33 percent in 2004 to 42 percent last year, according to Pew. In a September 2011 poll by the Associated Press/NORC Center for Public Affairs Research, 70 percent of American respondents favored the use of surveillance cameras, 48 percent favored government monitoring of Internet searches without a warrant, and 49 percent favored warrantless wiretaps of phone calls made to individuals outside the United States. (Only 23 percent favored warrantless wiretaps of phone conversations inside the country.)
THE WEDGE ISSUE
Determined to fulfill a campaign pledge, Obama ordered, on his second day in office, that Guantánamo prison must close within a year, even though the administration didn’t yet have a plan for how to accomplish this goal. A former top Obama administration official who asked not to be named said it was the rare case when a significant policy was decided hastily by top-down edict, rather than by vetting through interagency review. That made it easy for conservatives to paint the administration as feckless and naive on national security. As former Vice President Dick Cheney put it after Obama’s National Archives speech, “I think the president will find, upon reflection, that to bring the worst of the worst terrorists inside the United States would be cause for great danger and regret in the years to come.”
Instead of producing a rapid-action plan, the administration’s Guantánamo Review Task Force ran into a mess. The Bush administration had set up Guantánamo primarily as an interrogation site outside the reach of international or domestic law, not as a place to prepare suspects for trial. Intelligence files on each individual were spread across government agencies, and many were grossly incomplete. Some interrogations were tainted by torture. The Bush administration, under pressure from courts, had already released more than 500 prisoners, so the 240 detainees who remained were the toughest cases. “The result is a hodgepodge of internally inconsistent policies, an outsized role for the courts, and huge gaps in what the public has been told,” says Jane Harman of the Woodrow Wilson International Center for Scholars, who served on the House Intelligence Committee at the time.
As the task force bogged down in 2008, Obama made decisions that belied the existence of “bipartisan consensus” for closing Guantánamo. He angered the Right by releasing the “torture memos” in which Bush-era officials justified “enhanced interrogation,” and he angered the Left by refusing to investigate those officials or the interrogators. The fault line was clear: In 2009, only 26 percent of Republicans approved of Obama’s decision to shut Guantánamo, while 76 percent of Democrats did, according to Pew. In a 2008 poll, 83 percent of Republicans thought torture was justified in some cases (60 percent of Democrats agreed).
Accordingly, Obama’s political headwinds were strong. When Justice moved in November 2009 to try Khalid Shaikh Mohammed, the 9/11 mastermind, in Manhattan’s federal District Court, New Yorkers led by Mayor Michael Bloomberg (who had initially supported the plan) revolted. A similar NIMBY spasm thwarted a move to build a “supermax” prison for terrorism suspects in Illinois. Chicago could become “ground zero for jihadist plots” warned then-Rep. Mark Kirk, R-Ill.
In retrospect, by the time Obama gave his “season of fear” speech, he was already on the defensive. The day before, the Senate had voted 90-6 to bar the administration from transferring any detainees to the United States, following a similarly lopsided vote in the Democratic-controlled House a week earlier. It was the first of many restrictions that Congress would impose in the months and years to come—tying the administration’s hands not only in closing down Guantánamo but also in releasing its prisoners, trying them in federal courts, or transferring them to third countries.
Administration officials were surprised at how eager Republicans were to use Guantánamo as a wedge issue, given that McCain had also promised in 2008 to close it. Benjamin Wittes, a Brookings scholar who went on to write Detention and Denial: The Case for Candor After Guantánamo, warned early that it would be hard, for political reasons, to close the prison. “But almost no one anticipated that there would be a huge, bipartisan majority in Congress united behind the proposition that it should remain open indefinitely and the detainees there should be tried in military commissions,” he says. “It turns out that the American people don’t like the detainees very much, and there’s much more public support for those who want to keep Guantánamo open. That really rocked the Obama administration back on its heels.”
Unable to fulfill his campaign pledge, Obama has focused on improving the prison, reforming military commissions, and directing new suspects toward the federal courts (which have notched more than 400 terrorism convictions since 9/11, compared with just seven in military commissions). The 2009 Military Commissions Reform Act narrowed the differences between federal trials and commissions, for instance, by shifting the burden of proof for hearsay evidence from the accused to the government; it also barred evidence gathered from torture. The upcoming trial of Mohammed and his cohorts at Guantánamo will test the new standards.
In this election cycle, Obama rarely mentions Gitmo on the campaign trail; he has ceded that ground to Republicans. Meanwhile, the nation has set a precedent for treatment of captives that may haunt U.S. troops in the future, according to retired Col. Morris Davis, a former Guantánamo prosecutor who resigned in protest in 2007 over pressure from Bush administration appointees to use evidence gathered during enhanced interrogations. “The American public continues to buy into the false narrative that the detainees remaining at Guantánamo represent the ‘worst of the worst,’ whereas I’ve seen, personally, that description only applies to a significant minority of detainees,” he says. “We listened to the fearmongers and turned our backs on the law, and we’ve been running ever since.”
JUDGE, JURY, EXECUTIONER
If civil-rights advocates were disillusioned about Guantánamo, they’re incensed by the administration’s attitude toward due process. They hear echoes of Bush in the policy of indefinite, preventive detention for prisoners who can’t be tried even in military commissions (for lack of reliable or untainted evidence) but who are considered too dangerous to release. They hear those echoes, too, in Obama’s decision not to investigate CIA interrogators—meaning that he’ll forgo the possibility of a legal precedent holding that “enhanced interrogation” is torture, paving the way for future administrations to use it.
Civil libertarians are most disturbed, however, by the administration’s expansion of a program through which the United States kills suspected terrorists around the world—even Americans such as Anwar al-Awlaki, who was targeted last year in Yemen. In a March 5 speech reacting to those concerns, Attorney General Eric Holder went further than any previous government official in justifying a government assassination program so secretive that administration officials generally refuse to even acknowledge it in public. Holder argued that such attacks are justified only to counter an “imminent threat of violent attack,” but he said that the Constitution’s guarantee of “due process” did not apply and that American citizens were therefore not exempt.
“President Obama has gone from taking torture off the table on his first day in office to claiming the power to secretly identify an American citizen as a suspected terrorist and authorize his killing,” says Karen Greenberg, director of the Center for National Security at Fordham University. Without oversight, she said, the category of whom can be targeted will almost certainly swell. At one point, the Pentagon expanded its classified “capture or kill” mandate to include Afghan drug dealers. And the CIA recently sought authority to kill targets in Yemen “based solely on intelligence indicating patterns of suspicious behavior,” according to The Washington Post. “The public doesn’t seem to care,” said Greenberg, who notes that American juries seem unable even to assume innocence in terrorism cases. “They will almost never risk letting someone go free if the government says they are terrorists. That’s how your civil rights disappear over time.”
What’s more, those changes are getting locked in place. “Both Presidents Bush and Obama have successfully adopted an argument that we are in a state of perpetual war that requires presidential authority to remain largely unchecked and unlimited,” says Jonathan Turley, a constitutional law professor at George Washington University. “And they have both used that authority to justify a great array of abuses that range from the torture of prisoners to the killing of American citizens by their own government without charge or trial. That’s the very definition of authoritarian power, and it legitimizes the actions of the most tyrannical regimes on earth.”
The Obama administration can reasonably argue that it abolished torture and would have closed Guantánamo had Congress assented. Democrats can explain their general silence on the retreat of civil liberties with the need to protect the right flank of their president. Republicans, meanwhile, can claim credit for helping keep the balance between civil liberties and national security weighted toward the latter. The Supreme Court can say it gave habeas corpus rights to detainees (although lower courts have greatly diluted the protection by easing the government’s burden of proof). The American people can take comfort in the fact that there has been no major terrorist attack since Sept. 11, 2001. But how did we go from a bipartisan consensus to restore civil liberties in 2008 to a full retreat before the juggernaut of intrusive government powers?
In retrospect, civil libertarians read more into Obama’s rhetoric about “restoring the rule of law” than he actually promised (or was able to deliver). Democrats almost certainly underestimated the popular resonance of Cheney’s argument that “in the fight against terrorism there is no middle ground, and half-measures leave you half exposed.” They failed to anticipate how quickly talk radio, cable television, and 24/7 media can amplify and distort such fears.
There’s also the matter of unlucky timing. In Obama’s first years, a series of high-profile terrorist plots reawakened memories of 9/11: Najibullah Zazi’s plan to blow up New York City subways; Farouk Abdulmutallab’s attempt to bring down an airliner over Detroit; and Faisal Shahzad’s scheme to bomb Times Square. By the time Holder proposed to try Mohammed in a New York federal court, the backlash of fear had already begun. The administration was forced into a full retreat from which it never fully recovered.
Finally, Obama’s tough approach to counterterrorism has played well, reversing the GOP’s long dominance on national-security issues. In an ABC News/Washington Post poll in February, 56 percent of respondents said that Obama’s record on terrorism is a major reason to support him. A Washington Post poll the same month found that 83 percent of Americans approved of the use of drone aircraft against terrorist suspects overseas, 65 percent supported the use of drones to target suspected American terrorists living abroad, and 70 percent approved of “keeping open the prison at Guantánamo Bay for terrorist suspects.”
Yet it is also increasingly clear that what makes this period almost uniquely dangerous in the nation’s history is the hybrid nature (part criminal, part military) and endless horizon of the conflict. Some Qaida suspects are given Miranda rights and charged under criminal statutes in federal courts. Others are held in a military prison and prosecuted by military commissions. Still others get blown apart far from any acknowledged battlefield, all under our current laws of warfare. With the two legal regimes routinely conflated, it’s no wonder that the public is confused about what accords with American principles.
The length of the conflict compounds the problem. “The government almost always expands its power in moments of great crisis, and civil liberties sharply decline,” Turley says. “What’s different today is that Americans have over time been lolled into a deep sleep of passivity.” He believes that the Framers would have been shocked to hear Holder tell his fellow citizens that the president has the right to kill any one of them on his own authority—let alone to hear it met by applause. “The danger is not just that our laws have changed to an unprecedented degree since 9/11,” Turley says. “We appear to have changed as citizens.”
The lack of any definable end to the threat forestalls the self-correcting cycle that followed past wars and crises, when civil-liberties abuses—the internment of Japanese-Americans during World War II, for instance—were reexamined and reversed. In an endless conflict, the exigencies of war get embedded not only in statutory and legal structures, but also in the consciousness of the American people.
This article appears in the April 28, 2012, edition of National Journal.