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Will Obama the Constitutional Lawyer Please Stand Up? | The Nation

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Will Obama the Constitutional Lawyer Please Stand Up?

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The lesson of the fifth episode is slightly different, and possibly more relevant. During the Cold War, from the 1950s into the ’70s, the government’s feverish surveillance and nasty tricks against peace groups and civil rights leaders were not brought to an end until they were publicly disclosed as excessive and illegal. It was not a sense of safety but of shock that moved the country—shock that the FBI had tried to blackmail Martin Luther King Jr. into committing suicide, had sent Black Panthers’ wives fabricated letters from nonexistent mistresses, had planted rumors to foment violence between street gangs and the Panthers, had been assisted by the CIA, the IRS and military intelligence to monitor and intimidate political dissidents. The misdeeds, documented by Senator Frank Church’s bipartisan committee, prompted real action: privacy laws and regulations aimed at shutting down politically motivated domestic surveillance. Many of those measures—most notably FISA in 1978—were then shot full of holes by the Patriot Act and other legislation following 9/11. 

About the Author

David K. Shipler
David K. Shipler’s latest books are two companion volumes on civil liberties, The Rights of the People: How Our...

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Public knowledge and legal opinion have yet to catch up to the massive state spying enabled by new technologies.

The Obama administration may not employ lawyers advocating for extreme abrogations of constitutional protections, but it frequently ends up acquiescing to the political right.

Looking at this history, it is reasonable to think that the current era of abuse will not end without a blend of relative safety, public outrage and dispassionate investigation. That end seems a good distance away. 

Obama has already rejected the bright sunlight of public knowledge, which is democracy’s great disinfectant and cure. Although he released the Bush administration’s legal memos that clinically authorized specific torture techniques, his Justice Department has decided that the torturers themselves will not be prosecuted. Nor will a formal inquiry be launched to investigate and document the “enhanced interrogation techniques” used in the CIA’s secret prisons overseas, the “extraordinary rendition” of suspects seized in one country and spirited to another, the National Security Agency’s unlawful interception of communications inside the United States, the random jailing of Muslims immediately after 9/11 and a host of other abuses.

Taking that kind of hard look is something “we do when it comes to Katrina or BP or 9/11,” says David Cole, a law professor at Georgetown University and The Nation’s legal affairs correspondent, “but it’s not something we’ve done when it comes to violations of civil rights. It’s an important task, but I see no willingness to go there. It would take some disclosure, some leak, something that says, ‘Oh my God—it’s worse than we thought!’”

Obama prefers to look forward, not back, as he has stated. So at least during his tenure, there will be no reliable record compiled as a cautionary tale for lawmakers and presidents in future times of crisis. This is the ahistorical Obama. But surely the introspective and worldly Obama—the man who crosses cultures and embraces nuance—has noticed that nations cannot look forward clearly without first looking back. South Africa, Rwanda, Cambodia, Russia and the former Yugoslavia all come to mind, and the roll call goes on in a drumbeat of wrongdoing and confrontation between past and future.

America has heard no clamor for an accounting. Most book-length investigations are sparsely reviewed by newspapers, their authors mostly ignored by Diane Rehm, Terry Gross, Charlie Rose and the other serious talk-show hosts. The general public displays a nonchalant conviction that “others” are the targets of constitutional violations—not “us,” but rather Muslims, foreigners and terrorists. “I’m happy to give up your rights for my safety” seems the conventional view, an insular cynicism that carries easily into Congress, which has no stomach for investigation either. The Senate Intelligence Committee examined torture, but in secret, without the public hearings essential to citizens’ education. And its 6,000-page report, approved by a 9-6 party-line vote in December, is being censored before release by the CIA and other government agencies with strong motives to suppress the ugly details.

“The advantage of the Church Committee was that it was very bipartisan, looking back to multiple administrations, Democratic and Republican,” notes Joseph Onek, a veteran of the Carter and Clinton administrations and a senior counsel to Nancy Pelosi when she was House majority leader. “If the Obama administration did some terrible things, then some future administration could study the Bush era and the Obama era.”

But first the terrible things would have to become known, and they would have to be perceived as terrible. One ongoing investigation has that potential. In 2010, the FBI raided the homes of seven antiwar activists in Chicago, Grand Rapids and Minneapolis, carting off boxes of personal letters, children’s drawings, computers, political posters and other materials. FBI agents questioned other leftists in Michigan, Wisconsin, California and North Carolina, and served grand jury subpoenas on a total of twenty-three people, at least some of whom had traveled to the Middle East to meet with a Palestinian women’s group possibly linked to the Popular Front for the Liberation of Palestine (PFLP), and to Colombia to meet with FARC (the Revolutionary Armed Forces of Colombia), which are both on the State Department’s list of terrorist organizations. All those people subpoenaed refused to testify, citing their Fifth Amendment right against self-incrimination.

At issue may be the vaguely worded federal prohibition against providing “material support” to foreign terrorist groups. In 2010, the Supreme Court upheld the law as constitutional when it criminalizes speech that is being coordinated with such organizations—even if it takes the form of advice on using nonviolence and respecting international law. No indictments have been brought as of this writing, but at least eleven members of Congress, sixty-two Minnesota legislators and various labor union leaders have already warned the FBI about the specter of a political prosecution.

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