Number of times Saxby Chambliss (R-GA) used the term "bad guys" during his arguments against #FISA Amendments yesterday: 8.
— Rasmus Xera (@RasmusXera) December 28, 2012
Number of times he mentioned civil liberties: 0.
— Rasmus Xera (@RasmusXera) December 28, 2012
In a series of New Year's gifts to the ghost of George Orwell - who every year at around this time haunts us with a resounding "I told you so." - President Obama last week signed into law both Congress' recent FISA extension and the 2013 NDAA. Thanks to the gigantic distraction known as the "fiscal cliff", which was mostly an argument over a couple percentage point differences in tax brackets (manufactured to conceal the fact that the leadership of both parties are intent on slashing benefits), the media almost completely ignored the greater controversy regarding civil liberties.
Despite expressing open hostility toward FISA in the past, Obama vehemently lobbied Congress to extend it as-is, urging them to reject any and all amendments that would limit the rapidly expanding reach of the surveillance state. His loyal servants in the Senate waited until the very last moment possible to bring the bill up for debate (in typical Congressional fashion), assuring that their 'four days left before the terrorists have free reign' fear-mongering would squelch any real opposition. And predictably, it worked. The amendments were shot down one by one, and the program later wholly extended in a 73-23 vote. Even Patrick Leahy's (D-VT) almost benign recommendation to cut the term down from five years to three - assuring there would be "debate" again before the end of Obama's presidency - was soundly defeated.
The original FISA legislation, passed in 1978, was a response to the rampant abuses of the Nixon era, including and especially the Watergate scandal. Its primary function was to create a secret court which the executive branch was forced to use in order to obtain warrants for domestic surveillance operations. Whatever questionable level of oversight this could have provided in the height of the Cold War notwithstanding, it was at least a step in the right direction.
But then came Bush and the events on 9/11. And, as fascists and those who enable them like to say: 9/11 changed everything. The Bush administration within months had turned to warrantless wiretapping, persuading the largest telecommunications companies in the country to give the NSA unfettered access to the flow of information - a story which the New York Times blew open in 2005. In predictable fashion, later research found that Bush was even on the record as late as 2004 lying about the very same issue. Thanks to this intrepid journalism, it was now the perfect opportunity for both accountability and even more controls on surveillance. Wasn't it? Well, of course it wasn't.
The administration continued warrantless wiretapping until 2007, stopping only when it was clear Congress would come to its aid by introducing amendments to FISA that would allow bypassing of the court in certain circumstances. The first of these amendments, the Protect America Act of 2007 (there's that ghost again...), was terrible from most standpoints, but still didn't go as far as the bill we know as "FISA" - the FISA Amendments Act of 2008. The new FISA didn't just legalize a whole slew of things which were potentially criminal (and certainly unconstitutional), it gave the telecom companies that had betrayed the trust of Americans everywhere retroactive immunity from prosecution. You see, courts across the country had begun to move on cases which implicated AT&T, and the government just couldn't allow their good friends to get strung out like that.
Senator Barack Obama, then running his first presidential campaign, initially supported an amendment (to the amendments) that would take out the retroactive immunity statute, though when it failed to pass he still offered his vote in favor of the final bill. Many on the left were none too pleased, but the very nature of the election cycle involves Democrats knowing they will have to compromise their positions, resolving themselves to support the lesser of evils, and then attempting to make the most of it. That's why Obama was able to get away with stating "some of you may decide that my FISA position is a deal breaker. That's ok."
'Yeah, that's okay,' he says. 'I know you'll still vote for me come election time. Hell, most of you will be so distracted by the rest of the campaign that you'll probably forget this even happened.'
And, of course, they did. Now, over four years later, President Obama finds himself able to not just advocate for, but help manipulate through Congress the very same legislation, meanwhile threatening dissenters with Bush-era rhetoric about the latest bogeymen out to ruin our collective American dream.
* * *
The story of the NDAA isn't quite as convoluted, but given that military spending bills are one of the most sinister elements of American politics (and the annual NDAA is the king of them all), it's still ugly.
The purpose of the NDAA is, according to the bill itself:
To authorize appropriations for fiscal year 2013 for military activities of the Department of Defense, for military construction, and for defense activities of the Department of Energy, to prescribe military personnel strengths for such fiscal year, and for other purposes.
When it mentions "other purposes", it means that just about anything can be included, as long as it vaguely relates to the military. This is a step up from the supplemental war funding bills that were passed mostly during the Iraq War, which often featured completely unrelated provisions. Still, the idea in both cases is that these are considered necessary pieces of legislation, which makes it much easier for members of Congress to insert sections which might not otherwise pass if attached to a more controversial bill (last year's NDAA contained sections furthering sanctions on Iran, focusing NATO strategy, and, famously, codifying into law indefinite military detention for even US citizens).
If any problems arise, you can entice submission by simply questioning the patriotism of those who speak out, or threatening to use their negative vote against them during their next campaign if it comes down to it. Not many can afford to be seen as voting against "the troops", after all.
The version of events you hear most, regarding the Obama administration's opinion on the NDAAs of the past two years, is that Obama is upset with the attacks on civil liberties included in them, and thus has threatened to use his veto power. After doing so, either the language in question is changed, or he thinks it will have enough votes to where his veto will be overwritten and so he 'saves his political capital for another time'. But the wide acceptance of this portrayal is nothing but grand politicking on Obama's part, used to further the idea that he really identifies with those of us concerned about our disappearing civil liberties. Political food for the hardliners, who cry out: 'What do you expect Obama to do? His hands are tied! Those obstructionist Republicans are always foiling our brilliant Democratic plans.'
Meanwhile, reality paints a much different picture. Obama's primary concern regarding detainees listed in his veto threat to the 2012 NDAA was that the provisions would "disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism". Nowhere did he explain to the Senate any of his supposed objections to infringements on the rights of people (or even just U.S. citizens). Nowhere did he - as a former professor of constitutional law - protest the bill's likely unconstitutionality. To the contrary, his statement even went so far as to claim there was "a decade of settled jurisprudence on [the executive's] detention authority".
Not only that, but the argument that the executive has authority to indefinitely detain whomever it wishes was clearly stated in the very same document [emphasis mine]: "Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk." Obama believes he already has the power (under the original authorization of military force passed just after 9/11), and was only concerned that - by defining exactly what it is he can do - Congress would limit that power. Hence this summation, underlined for emphasis in the original:
Any bill that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto.
Funny - the President's "senior advisers" sound almost exactly like Dick Cheney, John Ashcroft, and Donald Rumsfeld, using the threat of terrorism to advance their authoritarian desires. But rather than surprise those paying attention, this is exactly the type of thing we expect from Obama.
Which is why it's no surprise to see him use the very same type of arguments concerning the 2013 NDAA.
Again, the popular conception of what is going on has become completely skewed. What the Huffington Post and others call Obama's "Guantanamo Veto Threat" is actually another series of objections to Congress imposing on his executive authority. It's all made clear again and again in this year's statement of administration policy on the NDAA (which threatened a veto that never came, a recurring theme). Executive authority, separation of powers, constrains the government's ability to deal with terrorist threats, yadda yadda yadda.
Now, that isn't to say Obama doesn't want to close Guantanamo. Just that his idea of what 'closing Guantanamo' means is quite different from that of yours and mine. There is, of course, nothing preventing him from releasing its prisoners and closing the facility down outright. He could do that tomorrow if he so wished. What Congress is restricting him from doing is moving those detainees either to other countries, or to a similar base on U.S. soil. Somehow, in translating all of this from the White House to the average person, it becomes a statement to the tune of: Obama is holding to a firm, ethical stand on closing Guantanamo.
But even when he does find issue with something other than perceived infringements on his power, it's almost always with how bad Guantanamo makes America look. He calls the facility "a tremendous recruiting tool for al Qaeda", and notes - like in his signing statement last week, which was wrought with the same executive power arguments yet again - that it is "strengthening our enemies" and "damaging our relationships with key allies". The closest he comes to any kind of moral resolve is admitting keeping Guantanamo running is "wasting resources".
While, once upon a time, there might have been a Democratic president who used a veto to put an end to a torturous military prison that openly mocked Geneva conventions and turned due process on its head, the simple fact is that today we're living in a world far removed from that one. In our story, just about any immoral act or abuse of power can be excused in the name of protecting ourselves against "bad guys". It's a sad tale; one that will surely end in shame and regret.
That is, if we're still capable of those emotions by then.
* * *
What makes this entire situation even more upsetting is that if the Bush administration had pushed for the type of draconian measures highlighted by the latest in four-letter fascism, Democrats would have been up in arms about it.
So then, why is the response so different now? Why is Obama able to continually rely on those complicit in the worst of war crimes, like John Brennan, whom he recently nominated for CIA director? How does he continue to get away with the 'look forward, not back' whitewash?
Well, the truth is, most Democrats - including and especially Obama - never challenged the scope and purpose of the war on terror in the first place. They may have objected to specifics, like how the Iraq War was "handled", but they never sought to question the viability of actually fighting a 'war on terrorism'. In this way, the only real difference they had with conservatives who got everything about the war on terror completely wrong from day one, was that they opposed some of the Bush administration's policies. Many of us were tricked by those seemingly-bold stands against Bush's power, but it has since become clear they were wholly a mixture of partisan politics and a fear of trusting Republicans. Now that there's a Democrat in office, the very same politicians are more than willing to give him the benefit of the doubt on important matters. And that Democrat has done his best to take advantage of the situation.
By reaching into a bag of tricks procured from the most vile of Bush-era thugs, he has managed to further cement torture, indefinite detention, rendition, endless war, wholesale domestic spying, and other disturbing policies into our national identity. No longer can these events be considered outliers, or stains on our collective American past. No longer can just we look back and say "Wow, Bush really screwed things up". Obama now owns these policies, just as Bush once did. America owns them. They're widely accepted as bipartisan actions 'necessary' to 'win the war on terror'.
As Michele Richardson, a legislative counsel for the ACLU put it in the wake of the FISA debacle: "I bet [Bush] is laughing his ass off."