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.”