Lost Liberties in the Age of Obama

Michael Steven Smith

WHEN WORLD WAR II broke out on September l, l939 the poet W.H. Auden sat in a bar on 42nd Street and penned a poem using that fateful date for its title. He reflected that the past ten years had been “a low dishonest decade.” And so has our last ten.

Politicians explained the attack of 9/ll as “they hate us for our freedoms.” Then came the United States’ criminal attack on Iraq, justified because Saddam Hussein had “weapons of mass destruction.” The decade came to an unmerciful end with new president Barack Obama falsely promising “change you can believe in.”

Little has changed with respect to the democratic rights of Americans, the exertion of Executive power, or the gargantuan high tech growth of the government’s spying apparatus. How has Obama, with fellow Democratic Party Chicago politician Rahm Emmanuel as his Chief of Staff, essentially channeled Cheney and Bush? Let us count the ways.

The Center for Constitutional Rights released an assessment on where we stand with respect to restoring the Constitution on the 100th day of the new Democratic administration. The CCR report stated that “The Obama presidency has failed to live up to its promises in many areas of critical importance, including human rights, torture, rendition, secrecy and surveillance…”

Although the Gonzalez-Yoo torture memos of the Bush-Cheney regime were released by the new administration, no prosecutions of those who committed the crimes were initiated, as the CCR wrote, “in order to ensure justice for the victims and to make certain it never happens again.” In addition, torture loopholes were kept in the Army Field Manual. The report went on to denounce the “dangerous silence” of the administration on the issue of abolishing preventive detention, whose “structures remain available in the U.S.”

Presidential war powers continued unchecked, as recently demonstrated by Ob2ma’s escalation of the undeclared war in Afghanistan. The abuse of the state secrets privilege was continued. Most recently the administration’s attorneys raised it, to the dismay of an incredulous Federal judge in San Francisco. They succeeded in getting a lawsuit thrown out where the plaintiff’s testicles were sliced with a razor blade. He was suing a CIA-front airline that had flown him to the torture site.

Warrantless wiretapping has not been stopped and the Patriot Act’s sunset provisions were renewed, allowing that egregious piece of legislation a new lease on life. The CCR’s assessment was negative. Now, a year after the administration came to power, a new assessment would be even more so. (The report, “100 DAYS: Assessment to Restore the Constitution,” is available from the CCR, 666 Broadway, New York, NY l00l2. The website is www.ccrjustice.org.)

Wiping Out Our Rights

Many people mistakenly assumed that there would be significant change under the new Obama administration. But I believe that after 9/ll we need to recognize we are not just talking about a pendulum returning to its center; there has been a qualitative change in what were once our democratic rights.

However severely limited our Constitutional rights have been by class, race, privilege, and the political monopoly of two capitalist parties, nonetheless prior to 9/ll we had some checks and balances on Executive power. We had some protections under our Bill of Rights, especially the 1st, 4th, 5th and 6th amendments (speech, assembly, privacy, due process, prohibitions on cruel and inhuman treatment, and the right to a lawyer).

These rights have been and remain severely compromised. Daniel Ellsberg called the wreckage of civil liberties after 9/ll a “coup.” Clark Kissinger more precisely called it “a rolling coup.” The best explanation of what happened has been articulated by Jean Claude Pay, who describes the introduction of military law into domestic law by the Bush administration with near total support of the Democrats. In a Monthly Review article of November, 2007 Pay wrote:

“The government’s view is that the attacks of September 11 were an act of war and not just a crime. This view is based on the congressional resolution of September 18, 2001, the Authorization for the Use of Military Force, which grants special powers to the executive branch. It stipulates “that the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…

“The interpretation that the executive makes of this resolution is the expression of a state of war, not against other nations, but against organizations or ordinary individuals that are not linked to a foreign government. This interpretation redefines the concept of war. It gives it an asymmetrical character, a “fight to the death” between the world superpower and persons designated as enemies. This new concept of war is freed from positing the existence of any real threat against the United States. It is the pure product of the subjectivity of the ruling power: the state of war exists through its proclamation. In the name of “good against evil,” the U.S. state denies the political character of its action and by blurring the distinction between enemy and criminal, it merges external sovereignty with internal sovereignty.”

Two months after 9/11 came the turning point: Bush’s Military Order Number One of November 18, 2001. This was the “coup.”  Attorney Michael Ratner, President of the Center for Constitutional Rights, wrote on his blog (www.justleft.org) about its three key provisions:

“First, the President claimed the authority to capture, kidnap, or otherwise arrest any non-citizen (it was later extended to citizens) anywhere in the world including the United States whom the President believed was involved in international terrorism and hold them forever without any charges, proceedings, or trial. Amazing — a person could be held forever just because the President wanted them so held; he took on the power to disappear people. Second, the order did provide that if, and if is the crucial word here, if the person was tried (there never needed to be a trial) such trials were to be held by special ad hoc courts called military commissions.

“These commissions had no resemblance to regular trial courts. The entire proceeding could take place in secret with evidence from torture, and those found guilty could be executed in secret. Third, to the extent those imprisoned or tried could be determined and lawyers found, no court could hear any case. This order embodies within it the violations of fundamental rights we are facing today: indefinite detention without trial, Guantanamo, secret sites, special trials and disappearances.

“While it does not mention torture, that appears to have come a bit later, a secret detention system is part and parcel of a torture system. Let’s also repeat: this was a military order in a society and country that was still or purported to be under civilian rule. This order more than any other single document embodies our lost liberties.”

Bush-Cheney to Obama

Of course the initial 2000 seizure of the Presidency by stopping the vote count in Florida was a kind of “coup,” but following 9/ll the Bush administration defined its reign when it rolled out its anti-terrorism plan:

• The doctrine of global supremacy and the advocacy of preemptive war, outlawed by the United Nations charter.

• Refusal to recognize international law or the applicability of the Geneva Accords.

• Roundup of immigrants after 9/ll, thousands of persons held without charges.

• The Patriot Act, authorizing massive government spying, now renewed by Obama and the Democratic-controlled Congress.

• Domestic deployment of the military as law enforcement in violation of the Posse Comitatus Act of 1878.

• Secret deportation hearings.

• Seizure of citizens as “enemy combatants.”

• Massive secret wiretaps in violation of the Foreign Intelligence Surveillance Act (FISA), later made legal by Obama and Congress.

• Issuance of secret administrative warrants for all kinds of records under the Patriot Act.

• Suppression of Muslim charities.

• Secret “sneak and peek” searches under the Patriot Act.

• Classification of most government records. A reversal of the idea that government should be transparent, but people’s lives private.

• Legitimization of torture. (Obama said he made torture illegal — it already was, even when Bush authorized it. Those who authorized and carried it out must be indicted and tried. Obama doesn’t want to touch that possibility.)

• Special rendition (outsourcing torture, which Obama still upholds).

• Establishment of private military contractors like the mercenaries of Blackwater.

• Assertion of Executive supremacy through “signing statements.”

• Doctrine of “Unitary Executive,” elevating the Executive Branch above Congress and the Judiciary.

• The 2007 John Warner National Defense Act, which allows the President to deploy the National Guard of one state into another state without the permission of either governor.

• The contracting for $385 million with Kellog, Brown, and Root, a subsidiary of Halliburton,  for the construction of a detention camp meant not just for immigrants.

• The introduction of military commissions to try criminal cases.

• The assertion of the state secrets privilege to protect the government from lawsuits by victims of torture and government abuse.

The Battles Ahead

With the criminal attacks of 9/ll, the imperial forces in America were handed an opportunity on a silver platter. Fear could be used to put across their long cherished program of rolling back both the “Watergate Syndrome” and the “Vietnam Syndrome” as well. On 9/ll they got their “new Pearl Harbor” for which the neocons in their document “Program for a New American Century” could previously only wish.

You can’t have imperialism abroad and freedom at home, as Gibbon wrote 200 years ago. The Rubicon has been crossed and the imperial troops are in Rome.

We understand, as did Frederick Douglas, that “Power concedes nothing without a demand. It never has and it never will.” We must organize, organize and organize. Our lost liberties will be regained not by the switching of administrations, but only in the course of class battles that may lie in the future.

We can move forward by first understanding and acknowledging the enormity of what has been done…. to us.

ATC 145, March-April 2010