Taking Liberties: The War on Terror and the Erosion of American Democracy (35 page)

“What Else Is It That We Don’t Know?”

The FISA Amendments Act sunsets in 2012 and bills have already been introduced to modify it, like a 2009 bill introduced by Representatives Conyers, Nadler, and Scott to reverse the retroactive immunity provision, to impose additional limits to prevent listening in on Americans, and to control retention of the information collected. If this program does continue, Congress or the courts at least should insist on meaningful procedures to control retention and dissemination of information swept up.
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Innocent people whose conversations are tapped should not find, as Brandon Mayfield did, that records of their private lives have burrowed into federal databanks.

Although the FAA required periodic reports to Congress, those reports aren’t public. In June 2010, Melissa Goodman and her colleagues filed a lawsuit to enforce a Freedom of Information Act request for records related
to government agencies’ implementation of the invasive FAA surveillance power, seeking information about how the FAA spying power is being interpreted and used, how many Americans are affected, and what safeguards are in place to prevent abuse of Americans’ privacy rights.
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In response to this lawsuit (which is still ongoing), the government released over 900 pages of records in November 2010. The documents confirm that there have been abuses of the FAA power but, given the heavy redaction, it is impossible to determine what those abuses were or how systemic they might have been. The documents also confirm that the effective decisions about whom the government monitors under this program are made by the executive branch and not by the courts. All discussion and information about whether this surveillance program has been effective are entirely redacted.
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If anyone is going to fix FAA, it has to be Congress. The courts in this area have, for the most part, been hog-tied by secrecy and exclusionary procedures. But will Congress be interested if its constituents don’t know that there are reasons to be concerned? Can the public take part in the coming debate without more information than we have now? And the most critical question remains the one asked by Representative Sue Kelly: “What else is it that we don’t know?”

III.
AMERICAN DEMOCRACY

11.
Losing Our Checks and Balances: The President, the Congress, and the Courts

We do not believe it is possible to defeat all terrorist attacks against Americans, every time and everywhere. A president should tell the American people: No president can promise that a catastrophic attack like that of 9/11 will not happen again.
—9/11 Commission (2004)
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[M]y single most important responsibility as President is to keep the American people safe. It’s the first thing that I think about when I wake up in the morning. It’s the last thing that I think about when I go to sleep at night.
—President Barack Obama (2009)
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A
S THE PREVIOUS
chapters have shown, the post-9/11 Just Trust Us frame generates systemic pressure on all three branches of the federal government—the president, the Congress, and the courts—to move in lockstep. Again and again, the executive branch overreacted or was tempted by secrecy to exceed its powers; again and again, Congress failed to rein in abuses or to fulfill its responsibility to monitor executive agency actions; again and again, the courts discarded serious constitutional challenges to the president’s and Congress’s actions for trumped-up procedural reasons. Throughout the first post-9/11 decade, there was too much apparent unanimity among the three branches and too little determination to respect our rights and our traditions. This superficial unanimity, combined with pervasive secrecy, has papered over serious constitutional and policy questions—questions about who we want to be as a nation going forward. The stories of the past ten chapters show some of the price we and our fellow Americans have paid due to this failure of the Constitution’s checks and balances. One necessary step to restoring and preserving our rights and our democracy is to reflect on what we can expect from each of the three branches of government while terrorism challenges us, and compare our expectations to what we have gotten so far.

The View from the Oval Office—From Bush to Obama and Beyond

By now it should be clear that the excesses of the War on Terror decade did not end when its architects-in-chief left the White House. The administration of the second post-9/11 president, Barack Obama, endorsed dragnet material support laws, despite their threat to First Amendment values; adopted the entire Bush arsenal of court-free spying techniques, despite their threat to privacy and First Amendment values; urged Congress to expand (or, in their word, “clarify”) the scope of National Security Letters, one of the powers Obama had deplored as a candidate; urged Congress to renew all of the Patriot Act with virtually no changes at the 2009 reauthorization hearings; and responded to the first aborted airplane terrorism incident on Obama’s watch by dramatically increasing the size of the notoriously problematic airport blacklists and then introducing an unprecedented level of privacy invasion in the TSA bodyscanner program. Obama’s lawyers defended seizing the assets of a charity without even minimal due process. They have pulled out all the stops to keep the courts from reviewing the constitutionality of any aspect of the Bush/Obama antiterrorism campaign, cozying up to legal doctrines candidate Obama had criticized, like the state secrets privilege. Their radical procedural arguments urge the courts to turn away people who have been injured by our antiterrorism policies without ever considering whether their rights have been violated. President Obama tells us that we should turn the page and not worry about abuses committed under the Bush Administration, denigrating the importance of accountability and the claims of history. Like his predecessor, Obama has publicly touted the desirability of judicial restraint and judges who “interpret” rather than “make” law.
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In some respects, Obama and his cabinet have shown that they have indeed learned from mistakes of the previous decade. Promising a change of direction from the excesses of the War on Terror, Obama eloquently expressed his belief that we “cannot keep this country safe unless we enlist the power of our most fundamental values.”
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His administration seemed determined to be more respectful of rights, more tolerant of diverse viewpoints, and less inclined to demonize Muslims. The Bush Administration, for example, had garnered criticism and lawsuits for ideological exclusion, denying visas to teach or to attend conferences in the United States to dozens of Islamic scholars including Tariq Ramadan, who taught at the University of Oxford, and Adam Habib, Vice-Chancellor of Research at
the University of Johannesburg. Obama’s Secretary of State, Hillary Clinton, reversed those decisions, ending the McCarthyist attempt to keep ideas from crossing the border. (It should be noted that her decision followed a pro–First Amendment judicial decision concluding five years of litigation about the right of Americans to engage with Ramadan’s ideas—a rare and welcome judicial intervention.
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) In his tone-setting Cairo speech as well as in domestic speeches, Obama declared that the war on terrorism is not a war on Islam,
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perhaps encouraging American Muslims to believe that, at least while Obama’s term lasts, they could go to a mosque or contribute to a charity without fear of repercussions. Or perhaps not. Good intentions at the top of the pyramid do not automatically translate into action. George W. Bush visited mosques in the aftermath of 9/11 and exhorted Americans not to blame all Muslims for the acts of extremists. The Patriot Act itself included a “sense of Congress resolution” condemning discrimination against Muslims.
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But these public statements of principle did not always square with discriminatory actions by government agents at the FBI, OFAC, or TSA, as the cases discussed in earlier chapters have shown. Even if Muslim-Americans wanted to trust Barack Obama personally, the agencies they had learned to distrust during the Bush Administration continued to employ many of the same people.

It is not surprising that President Obama quickly developed different views from candidate Obama about the relationship between our fundamental values and national security. The Just Trust Us frame pushes presidents to favor dragnets of all kinds. Held responsible for our safety and subject to blame for any terrorist incident, it is natural that presidents will opt for strategies that might just possibly prevent another attack rather than truly prioritizing preservation of our civil liberties. Terrorist attacks, concrete and visible, will lead to blame; avoiding violation of rights, an abstract goal, is unlikely to reap rewards. And of course all presidents will believe that they personally can be trusted to use their vast powers wisely. But the Just Trust Us frame is as harmful to those who wield the power as it is to those who suffer the consequences of its use. Presidents take on an impossible task if they believe, and encourage us to believe, that they will have failed if any terrorist plot succeeds, as the 9/11 Commission cautioned. But in December 2009 when Omar Abdulmutallab got on an airplane with explosives in his underwear, Obama took responsibility, telling the public that the system had failed and leading the public to believe that his administration could prevent any recurrences by doubling or tripling the size of the No Fly list and developing highly intrusive
screening procedures. This evidently was what the public wanted to hear. Expecting that presidents can guarantee our safety may be childish, but presidents respond to our unrealistic expectations for personal as well as political reasons. Any president will also be subject to other forms of pressure, including the momentum of the masses of people on the huge federal government payroll. For Obama to have reversed course on some post-9/11 programs would in all likelihood have alienated members of the military and the intelligence community, who presumably believed that they were doing good and necessary work under his predecessor. Career lawyers at the Justice Department, like their client agencies, would certainly have resented being compelled to reverse their positions in ongoing cases. So the considerable force of inertia combined with the pressures of politics and position to push Barack Obama toward morphing into what some termed “Bush Lite.”

While critics like Mary Cheney attacked Obama for not being more aggressive, many Bush supporters were either publicly or secretly relieved that Obama’s domestic antiterrorism policies turned out to be almost indistinguishable from Bush’s.
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Some Obama supporters were disappointed that their candidate did not rescind or revise more of the Bush War on Terror policies. Some accused Obama of having made empty campaign promises, while others recognized that the presidency itself generates enormous pressure to follow the Bush/Cheney “1 percent” path. Jack Goldsmith, who served in the Bush Office of Legal Counsel, recounts how President Bush began each day by reviewing a “threat matrix” that listed and analyzed every threat directed at the United States during the preceding twenty-four hours, including both credible reports and false alarms—a document often extending over dozens of pages.
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Even before he began his term of office, Barack Obama had to contend with an alarming terrorism alert that involved him personally. Intelligence sources warned him that terrorists planned to hijack his inauguration. Obama’s incoming security advisors worked closely with the outgoing Bush team to make contingency plans; Obama himself canceled what was to have been a final rehearsal of his inaugural address in order to analyze updates about the threat.
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It turned out to be a false alarm. But how is a president to resist overreacting to this constant specter of dire possibilities unless there is enough pressure from the other direction to provide balance? Libertarians, civil libertarians, and librarians can sound alarms, but if the American people are unaware of the costs of our counterterrorism policies, if they assume that the costs must be necessary to keep us safe because the president says
so, or if they believe that any costs will be paid by someone other than themselves, the president will not hear many voices asking him to reduce the size of the dragnets. And so, Goldsmith posits, “Every foreseeable post 9/11 President, Republican or Democrat, will embrace [unremitting fear of devastating attack, an obsession with preventing the attack, and a proclivity to act aggressively and preemptively to do so], just as Lincoln, Roosevelt, and other presidents did in time of war or emergency.”
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That Obama adopted most of his predecessor’s strategies for combating terrorism does not necessarily verify that those strategies are sound. Some might like to believe that once he became president, Obama gained access to secret information, unknown to us, that justifies Bush’s approaches. We have no way to know what information presidents share, but we cannot blindly trust that any president is doing what is needed to keep us safe because the temptation to use dragnets comes with the position. If Goldsmith’s prognosis applies even to a former Constitutional Law professor like Barack Obama, we cannot realistically expect any president to act aggressively to restore our rights.

The War on Terror decade challenged more than the Constitution’s guarantees of rights. It also rocked another of the Constitution’s essential safeguards of rights and democracy: the checks and balances among the three branches of the federal government. In George W. Bush’s view, he was the “decider” and he was justified in preventing Congress, the courts, and the public from second-guessing his decisions. Many books have been written describing how Bush and Cheney worked aggressively to outmaneuver Congress and the courts. And Congress and the courts, for the most part, acceded, sometimes by affirmatively ratifying actions, but mostly by remaining silent. When all three branches of the government seem to agree that particular strategies are constitutionally acceptable, it is tempting to conclude that we have no problem. But what sounded like a chorus of agreement was actually just one voice overdubbed in an echo chamber. As the last chapter described, where Congress has acted, its actions, beginning with the Patriot Act, have not been preceded by meaningful independent deliberations. The courts have not added much voice because they have been silenced by dismissive procedural arguments or just declined to get involved, because they have been overly deferential, or, in the case of the FISA Court of Review, because they have been stacked. Worst of all, the wall of secrecy has prevented the American people from having enough information to talk back to our elected officials as they’ve bartered away our rights.