Will Obama the Constitutional Lawyer Please Stand Up?
Most incursions on the Bill of Rights—especially the Fourth Amendment’s protection against unreasonable search—have been clandestine and invisible. Senators who know can’t say, as Ron Wyden of Oregon noted in 2011 when he declared on the Senate floor, “I have served on the Intelligence Committee for a decade, and I want to deliver a warning this afternoon: when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry. And they will be asking senators, ‘Did you know what this law actually permits?’… Many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified.”
Senator Obama voted in 2008 to amend FISA in a way that virtually legalizes the sort of widespread intercepts, with minimal judicial oversight, that Democrats had denounced the Bush administration for secretly initiating in 2001. Now President Obama presides over the same permissive system, only recently extended for another five years.
In a case currently before the Supreme Court, Clapper v. Amnesty International, the Obama administration maintains in its brief that the amended law “does not require an individualized court order addressing each non-United States person to be targeted,” but allows surveillance warrants “that identify categories of foreign intelligence targets.”
The word “categories” is the tip-off, according to the ACLU, whose brief for Amnesty asserts that every communication between anyone in the United States and a non-American abroad can be monitored in “the kind of vacuum-cleaner-style surveillance that the Church committee found so troubling.” Rather than aiming “its surveillance power at a specific person thought to be the agent of a foreign power,” the ACLU notes, the government can designate as targets of surveillance “a group of people, a neighborhood, a country, or a geographic region.” But no congressional action is required to halt this practice, says Jameel Jaffer, the ACLU’s deputy legal director: “There is nothing to prevent President Obama from issuing an executive order disavowing dragnet surveillance.”
Similarly, Jaffer notes, the executive branch can improve the fairness of the military commissions that are slated to try some of the Guantánamo detainees, including those charged with organizing the 9/11 attacks. “Even if you accept that military commissions are here to stay, there’s a question of what the rules should be,” he says. For example, defendants may not tell the court that they were tortured because, as the Obama administration has argued, statements made in CIA detention are classified. “That regime should be offensive to anybody,” Jaffer says. “Imagine if another country—China or India—proposed that ‘we’re going to hold public trials of these people, who are accused of the most egregious offenses against the country. But when they begin to talk about the way they were treated in interrogation, the government is going to push a button to silence them.’”
To his credit, Obama ordered an end to torture and tried to move the 9/11 cases to federal civilian courts, where they belong, only to be blocked by Congress. Instead, the novel military commissions are feeling their way closer to the protections provided for defendants’ rights in courts-martial. “The differences are smaller and smaller,” says Cole, “and once those differences disappear, then we’ve won… more or less.”
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