Is there a fundamental difference between the Bush presidency and the Obama presidency in the area of domestic civil liberties?
The Obama administration has affirmed, continued and expanded almost all of the draconian domestic civil liberties intrusions pioneered under the Bush administration. Here are twenty examples of serious assaults on the domestic rights to freedom of speech, freedom of assembly, freedom of association, the right to privacy, the right to a fair trial, freedom of religion, and freedom of conscience that have occurred since the Obama administration has assumed power. Consider these and then decide if there is any fundamental difference between the Bush presidency and the Obama presidency in the area of domestic civil liberties.
On May 27, 2011, President Obama, over widespread bipartisan objections, approved a Congressional four year extension of controversial parts of the Patriot Act that were set to expire. In March of 2010, Obama signed a similar extension of the Patriot Act for one year. These provisions allow the government, with permission from a special secret court, to seize records without the owner’s knowledge, conduct secret surveillance of suspicious people who have no known ties to terrorist groups and to obtain secret roving wiretaps on people.
Criminalization of Dissent and Militarization of the Police
Anyone who has gone to a peace or justice protest in recent years has seen it – local police have been turned into SWAT teams, and SWAT teams into heavily armored military. Officer Friendly or even Officer Unfriendly has given way to police uniformed like soldiers with SWAT shields, shin guards, heavy vests, military helmets, visors, and vastly increased firepower. Protest police sport ninja turtle-like outfits and are accompanied by helicopters, special tanks, and even sound blasting vehicles first used in Iraq. Wireless fingerprint scanners first used by troops in Iraq are now being utilized by local police departments to check motorists. Facial recognition software introduced in war zones is now being used in Arizona and other jurisdictions. Drones just like the ones used in Kosovo, Iraq and Afghanistan are being used along the Mexican and Canadian borders. These activities continue to expand under the Obama administration.
Wiretaps for oral, electronic or wire communications, approved by federal and state courts, are at an all-time high. Wiretaps in year 2010 were up 34% from 2009, according to the Administrative Office of the US Courts.
Criminalization of Speech
Muslims in the US have been targeted by the Obama Department of Justice for inflammatory things they said or published on the internet. First Amendment protection of freedom of speech, most recently stated in a 1969 Supreme Court decision, Brandenberg v Ohio, says the government cannot punish inflammatory speech, even if it advocates violence unless it is likely to incite or produce such action. A Pakistani resident legally living in the US was indicted by the DOJ in September 2011 for uploading a video on YouTube. The DOJ said the video was supportive of terrorists even though nothing on the video called for violence. In July 2011, the DOJ indicted a former Penn State student for going onto websites and suggesting targets and for providing a link to an explosives course already posted on the internet.
Domestic Government Spying on Muslim Communities
In activities that offend freedom of religion, freedom of speech, and several other laws, the NYPD and the CIA have partnered to conduct intelligence operations against Muslim communities in New York and elsewhere. The CIA, which is prohibited from spying on Americans, works with the police on “human mapping”, commonly known as racial and religious profiling to spy on the Muslim community. Under the Obama administration, the Associated Press reported in August 2011, informants known as “mosque crawlers,” monitor sermons, bookstores and cafes.
Top Secret America
In July 2010, the Washington Post released “Top Secret America,” a series of articles detailing the results of a two year investigation into the rapidly expanding world of homeland security, intelligence and counter-terrorism. It found 1,271 government organizations and 1,931 private companies work on counterterrorism, homeland security and intelligence at about 10,000 locations across the US. Every single day, the National Security Agency intercepts and stores more than 1.7 billion emails, phone calls and other types of communications. The FBI has a secret database named Guardian that contains reports of suspicious activities filed from federal, state and local law enforcement. According to the Washington Post Guardian contained 161,948 files as of December 2009. From that database there have been 103 full investigations and at least five arrests the FBI reported. The Obama administration has done nothing to cut back on the secrecy.
Other Domestic Spying
There are at least 72 fusion centers across the US which collect local domestic police information and merge it into multi-jurisdictional intelligence centers, according to recent report by the ACLU. These centers share information from federal, state and local law enforcement and some private companies to secretly spy on Americans. These all continue to grow and flourish under the Obama administration.
Abusive FBI Intelligence Operations
The Electronic Frontier Foundation documented thousands of violations of the law by FBI intelligence operations from 2001 to 2008 and estimate that there are over 4000 such violations each year. President Obama issued an executive order to strengthen the Intelligence Oversight Board, an agency which is supposed to make sure the FBI, the CIA and other spy agencies are following the law. No other changes have been noticed.
The publication of US diplomatic cables by Wikileaks and then by main stream news outlets sparked condemnation by Obama administration officials who said the publication of accurate government documents was nothing less than an attack on the United States. The Attorney General announced a criminal investigation and promised “this is not saber rattling.” Government officials warned State Department employees not to download the publicly available documents. A State Department official and Columbia officials warned students that discussing Wikileaks or linking documents to social networking sites could jeopardize their chances of getting a government job, a position that lasted several days until reversed by other Columbia officials. At the time this was written, the Obama administration continued to try to find ways to prosecute the publishers of Wikileaks.
Censorship of Books by the CIA
In 2011, the CIA demanded extensive cuts from a memoir by former FBI agent Ali H. Soufan, in part because it made the agency look bad. Soufan’s book detailed the use of torture methods on captured prisoners and mistakes that led to 9-11. Similarly, a 2011 book on interrogation methods by former CIA agent Glenn Carle was subjected to extensive black outs. The CIA under the Obama administration continues its push for censorship.
Blocking Publication of Photos of U.S. Soldiers Abusing Prisoners
In May 2009, President Obama reversed his position of three weeks earlier and refused to release photos of US soldiers abusing prisoners. In April 2009, the US Department of Defense told a federal court that it would release the photos. The photos were part of nearly 200 criminal investigations into abuses by soldiers.
The Bay Area Transit System, in August 2011, hearing of rumors to protest against fatal shootings by their police, shut down cell service in four stations. Western companies sell email surveillance software to repressive regimes in China, Libya and Syria to use against protestors and human rights activists. Surveillance cameras monitor residents in high crime areas, street corners and other governmental buildings. Police department computers ask for and receive daily lists from utility companies with addresses and names of every home address in their area. Computers in police cars scan every license plate of every car they drive by. The Obama administration has made no serious effort to cut back these new technologies of spying on citizens.
Use of “State Secrets” to Shield Government and Others from review
When the Bush government was caught hiring private planes from a Boeing subsidiary to transport people for torture to other countries, the Bush administration successfully asked the federal trial court to dismiss a case by detainees tortured because having a trial would disclose “state secrets” and threaten national security. When President Obama was elected, the state secrets defense was reaffirmed in arguments before a federal appeals court. It continues to be a mainstay of the Obama administration effort to cloak their actions and the actions of the Bush administration in secrecy.
In another case, it became clear in 2005 that the Bush FBI was avoiding the Fourth Amendment requirement to seek judicial warrants to get telephone and internet records by going directly to the phone companies and asking for the records. The government and the companies, among other methods of surveillance, set up secret rooms where phone and internet traffic could be monitored. In 2008, the government granted the companies amnesty for violating the privacy rights of their customers. Customers sued anyway. But the Obama administration successfully argued to the district court, among other defenses, that disclosure would expose state secrets and should be dismissed. The case is now on appeal.
The Obama administration successfully asked the US Supreme Court not to apply the First Amendment and to allow the government to criminalize humanitarian aid and legal activities of people providing advice or support to foreign organizations which are listed on the government list as terrorist organizations. The material support law can now be read to penalize people who provide humanitarian aid or human rights advocacy. The Obama administration Solicitor General argued to the court “when you help Hezbollah build homes, you are also helping Hezbollah build bombs.” The Court agreed with the Obama argument that national security trumps free speech in these circumstances.
Chicago Anti-war Grand Jury Investigation
In September 2010, FBI agents raided the homes of seven peace activists in Chicago, Minneapolis and Grand Rapids seizing computers, cell phones, passports, and records. More than 20 anti-war activists were issued federal grand jury subpoenas and more were questioned across the country. Some of those targeted were members of local labor unions, others members of organizations like the Arab American Action Network, the Columbia Action Network, the Twin Cities Anti-War Campaign and the Freedom Road Socialist Organization. Many were active internationally and visited resistance groups in Columbia and Palestine. Subpoenas directed people to bring anything related to trips to Columbia, Palestine, Jordan, Syria, Israel or the Middle East. In 2011, the home of a Los Angeles activist was raided and he was questioned about his connections with the September 2010 activists. All of these investigations are directed by the Obama administration.
The Obama administration has prosecuted five whistleblowers under the Espionage Act, more than all the other administrations in history put together. They charged a National Security Agency advisor with ten felonies under the Espionage Act for telling the press that government eavesdroppers were wasting hundreds of millions of dollars on misguided and failed projects. After their case collapsed, the government, which was chastised by the federal judge as engaging in unconscionable conduct allowed him to plead to a misdemeanor and walk. The administration has also prosecuted former members of the CIA, the State Department, and the FBI. They even tried to subpoena a journalist and one of the lawyers for the whistleblowers.
Army private Bradley Manning is accused of leaking thousands of government documents to Wikileaks. These documents expose untold numbers of lies by US government officials, wrongful killings of civilians, policies to ignore torture in Iraq, information about who is held at Guantanamo, cover ups of drone strikes and abuse of children and much more damaging information about US malfeasance. Though Daniel Ellsberg and other whistleblowers say Bradley is an American hero, the US government has jailed him and is threatening him with charges of espionage which may be punished by the death penalty. For months Manning was held in solitary confinement and forced by guards to sleep naked. When asked about how Manning was being held, President Obama personally defended the conditions of his confinement saying he had been assured they were appropriate and meeting our basic standards.
At least 20,000 people are in solitary confinement in US jails and prisons, some estimate several times that many. Despite the fact that federal, state and local prisons and jails do not report actual numbers, academic research estimates tens of thousands are kept in cells for 23 to 24 hours a day in supermax units and prisons, in lockdown, in security housing units, in “the hole”, and in special management units or administrative segregation. Human Rights Watch reports that one-third to one-half of the prisoners in solitary are likely mentally ill. In May 2006, the UN Committee on Torture concluded that the United States should “review the regimen imposed on detainees in supermax prisons, in particular, the practice of prolonged isolation.” The Obama administration has taken no steps to cut back on the use of solitary confinement in federal, state or local jails and prisons.
Special Administrative Measures
Special Administrative Measures (SAMS) are extra harsh conditions of confinement imposed on prisoners (including pre-trial detainees) by the Attorney General. The U.S. Bureau of Prisons imposes restrictions such [as] segregation and isolation from all other prisoners, and limitation or denial of contact with the outside world such as: no visitors except attorneys, no contact with news media, no use of phone, no correspondence, no contact with family, no communication with guards, 24 hour video surveillance and monitoring. The DOJ admitted in 2009 that several dozen prisoners, including several pre-trial detainees, mostly Muslims, were kept incommunicado under SAMS. If anything, the use of SAMS has increased under the Obama administration.
These twenty concrete examples document a sustained assault on domestic civil liberties in the United States under the Obama administration. Rhetoric aside, how different has Obama been from Bush in this area?
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Bill Quigley is a human rights lawyer and professor at Loyola University New Orleans College of Law. He is also a member of the legal collective of School of Americas Watch.