[By Nat Hentoff, Village Voice | Tuesday, 12 January, 2010.]
Before President Obama, it was grimly accurate to write, as I often did in the Voice, that George W. Bush came into the presidency with no discernible background in constitutional civil liberties or any acquaintance with the Constitution itself. Accordingly, he turned the "war on terror" over to Dick Cheney and Donald Rumsfeld - ardent believers that the Constitution presents grave obstacles in a time of global jihad.
But now, Bush's successor - who actually taught constitutional law at the University of Chicago - is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we've signed.
On January 22, 2009, the apostle of "change we can believe in" proclaimed: "Transparency and the rule of law will be the touchstones of my presidency." But four months into his first year in command, Obama instructed his attorney general, Eric Holder, to present in a case, Jewel v. National Security Agency, a claim of presidential "sovereign immunity" that not even Dick Cheney had the arrant chutzpah to propose.
Five customers of AT&T had tried to go to court and charge that the government's omnipresent spy, the N.S.A., had been given by AT&T private information from their phone bills and e-mails. In a first, the Obama administration countered - says Kevin Bankston of Electronic Frontier Foundation, representing these citizens stripped of their privacy - that "the U.S. can never be sued for spying that violated federal surveillance statutes, the Foreign Intelligence Surveillance Act, or the Wiretap Act."
It is one thing, as the Bush regime did, to spy on us without going to court for a warrant, but to maintain that the executive branch can never even be charged with wholly disregarding our rule of law is, as a number of lawyers said, "breathtaking."
On the other hand, to his credit, Obama's very first executive orders in January included the ending of the C.I.A. "renditions"—kidnapping terrorism suspects off the streets in Europe and elsewhere and sending them for interrogation to countries known to torture prisoners. However, in August, the administration admitted that the C.I.A. would continue to send such manacled suspects to third countries for detention and interrogation.
Why send them to a foreign prison if they're not going to be tortured to extract information for the C.I.A.? Oh, the U.S. would get "guarantees" from these nations that the prisoners would not be tortured. That's the same old cozening song that Condoleezza Rice and George W. Bush used to sing robotically.
President Obama also solemnly pledged to have "the most open administration in American history." Nonetheless, his Justice Department lawyers have already invoked "state secrets" to prevent cases brought by victims of the C.I.A. renditions from being heard.
In February, in a lawsuit brought by five graduates of C.I.A. "black sites" before the Ninth Circuit Court of Appeals in San Francisco, one of the judges, visibly surprised at hearing the new "change" president invoking "state secrets," asked the government lawyer, Douglas Letter, "The change in administration has no bearing on this?"
The answer: "No, your honor." This demand for closing this case before it can be heard had, he said, been "thoroughly vetted with the appropriate officials within the new administration, [and] these are authorized positions."
Said the torture graduates' A.C.L.U. lawyer, Ben Wizner: "Much is at stake in this case. If the C.I.A.'s overboard secrecy claims prevail, torture victims will be denied their say in court solely on the basis of an affidavit submitted by their torturers."
Barack Obama a torturer? Not exactly. In this particular case, the torture policy had been set by George W. Bush. President Obama is just agreeing with his predecessor. Does that make Obama complicit in these acts of torture? You decide.
What is clear, beyond a doubt—and not only in "rendition" cases, but in other Obama validations of what Dick Cheney called the necessary "dark side" of the previous administration—has been stated by Jameel Jaffer. Head of the A.C.L.U.'s National Security Project, he is the co-author of the definitive evidence of the Bush-Cheney war crimes that Obama is shielding, Administration of Torture (Columbia University Press).
After the obedient Holder rang the "state secrets" closing bell in the San Francisco case, Jaffer described the link between the Bush and Obama presidencies: "The Bush administration constructed a legal framework for torture, but the Obama administration is constructing a legal framework for impunity."
It's become an Obama trademark: reversing a vigorous position he had previously taken, as when he signed into law the F.I.S.A. (Foreign Intelligence Surveillance Act) Amendments Act that, as a senator, he had vowed to filibuster as a protest against their destruction of the Fourth Amendment. And now he's done it again. His government is free to spy on us at will. (Full story here.)