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.