During the 2008 campaign one of Barack Obama‘s major themes was attacking the Bush anti-terror policies: warrantless snooping by the N.S.A., renditions, targeted assassinations, Guantanamo Bay detentions, enhanced interrogation techniques, military tribunals, as unconstitutional. He promised to close Guantanamo on his first day in office and end all of the other policies as soon as militarily feasible.
Yet Obama has only maintained the anti-terror policies of George W. Bush’s second term. The use of drones to carry out targeted assassinations has also drastically increased. Yet professed Civil Libertarians seem much quieter about this than they did during the Bush years.
Recall that the ACLU believes in an absolutist interpretation of some parts of the Bill of Rights, particularly, the First amendment (freedom of speech, religion and assembly) and the Fifth amendment (guaranteeing the right to “due process”). Under the ACLU interpretation of the Constitution, “individual rights” always trump the rights of the U.S. to carry out national security objectives. So prisoners of war must be given access to the civilian courts to bring habeas corpus proceedings for their release, the President cannot use the NSA to conduct warrantless searches of citizens’ emails and phone calls without a hearing before a federal judge where the burden is always on the government to prove national security will be damaged irreparably if an individual’s rights are infringed upon.
I don’t believe that the founders intended the Bill of Rights to apply in a way that inhibits the President’s wartime powers. Other Presidents did not think this either. President Wilson ordered his Attorney General to conduct mass warrantless searches and arrests of opponents of World War I and FDR decreed that a handful of German soldiers – one of them a US citizen – captured on U.S. soil would be tried in a military court where they were not given any civilian procedural rights. They were executed, and neither president faced impeachment hearings.
Since 9/11, however, some civil liberties advocates have demanded that the country depart from these precedents in favor of a new expansive definition of wartime civil liberties in which the rights of individuals accused would take precedence over national defense.
From this personally I conclude that the ACLU’s view of the Bill of Rights is antihistorical and politically inspired.
During the 2008 campaign, candidate Obama expressed agreement with these civil liberties advocates. As soon Obama assumed office, however, he found that Bush’s methods of fighting terrorism wer, apparently, necessary. He even cranked up the targeted assassinations to several a day. There is no due process here. I’m all in favor of these killings, (provided the government can carry out such a policy judiciously) but where is the ACLU? Why are they not calling Obama and Eric Holder Constitution shredders? Where are the “civil libertarians” in the media and the academy denouncing Obama? The U.S. drone which crashed in Iran two weeks ago was not authorized by the post 9/11 declaration of war on Afghanistan or the 2003 authorization of war against Iraq. If this had occurred under a Republican president, I imagine the Democratic opposition would demand hearings.
There was some talk last year about an ACLU-type opponent emerging in the Democratic primaries. But that never materialized, probably because the public at large is not actually outraged by these supposed unconstitutional policies, and because Democrats will only show significant outraged when the actions are committed by a Republican.