Shahid Buttar, executive director, leads BORDC and the People’s Campaign for the Constitution (PCC) as we raise awareness about the impacts of national security policies on civil liberties and privacy interests. Previously Counsel to Muslim Advocates’ Program to Combat Racial & Religious Profiling, Buttar has long advocated in defense of the Constitution. A 2003 graduate of Stanford Law School, he served as Professor Lawrence Lessig’s Constitutional Law Teaching Assistant and as Executive Editor of the Stanford Environmental Law Journal. Based in Washington, DC, from 2003 to 2008, Buttar also served the American Constitution Society for Law & Policy as Associate Director for Communications & Outreach.
As a musician, Shahid has performed around the world for audiences as large as 50,000. His debut CD, Get Outta Your Chair, was released in 2008 and features music from the funk, blues, hip-hop, house, drum 'n bass, and South Asian fusion traditions, including Bumpin’ in My SUV and the Baghdad Blues.
A comprehensive list of Shahid’s prior publications, as well as his music, is available at his website (shahidbuttar.com). His most recent political commentary is available at the Huffington Post.
Important criticism of the Justice Department’s suppression of press freedom remains inadequate.
Finally finding its voice after five years of relative silence, the mainstream establishment press finally woke up this week to criticize the Obama administration’s assault on the First Amendment. But, while this criticism is important and necessary, it remains days (indeed, years) late, and much more than merely a dollar short.
Is this America or China?
The Justice Department’s seizure of Associated Press telephone calls without prior notice, in violation of fundamental First Amendment principles, and extending the Obama administration’s already hypocritical and authoritarian crackdown on government whistleblowers, is indeed a travesty worthy of this week’s onslaught from the press, Congress, and the public. Reaching even beyond the office phone lines of reporters and editors to also invade the privacy of their home and cellular calls, the Justice Department’s tactics seem more fitting in China than the United States.
Noting that “[b]y obtaining these records, the DOJ has struck a terrible blow against…freedom of the press and the ability of reporters to investigate and report the news,” the Electronic Frontier Foundation also noted the broader need to “require more than a mere subpoena…whether the target is the news media or an ordinary citizen.” Few others, however, beyond Glenn Greenwald, have recognized that the assault on press freedom is merely an extension of a longstanding policy shared by presidents from both of the major political parties.
To its credit, the Washington Post expanded the context of its reporting, writing this week that:
Last week, Senator Rand Paul (R-TX) forced a long overdue conversation in Washington about checks and balances on executive power. Yet few observers recognize the ultimate importance of his actions, or why the Senate’s confirmation of the new CIA director remained premature.
Prompted by Sen. Paul’s filibuster last Wednesday, Attorney General Holder wrote a letter the following day, acknowledging that our government lacks authority to execute Americans within the US without trial.
His concession is welcome, but must be taken with a grain of salt. It behooves observers to understand why, for several reasons, Holder’s statement may be less secure than we would ideally hope.
Accepting disclosure without investigation
Much of the controversy surrounding Brennan’s nomination concerned mere disclosure: whether the executive branch would let Congress read the administration’s legal analysis governing the targeted assassination program. President Obama apparently heard the message, admitting in his State of the Union address that more transparency is required.
The result proved underwhelming. One congressional committee received a single legal memo among several, which did not even purport to delineate the boundaries of the assassination program, but rather explored the use of deadly authority against a single target among several hundred who have been killed, including at least four US citizens.
Mere disclosure of some OLC memos to some Senators is insufficient.
Meaningful congressional oversight requires full access to all the legal memos, as well as active investigation of the underlying facts. It is not enough to simply read executive legal analyses paying lip service to constitutional values routinely violated on the ground.
Last year, the Senate Intelligence Committee concluded a thorough investigation of torture, which produced a report recognizing torture as an international human rights abuse that ultimately undermined US national security by producing false intelligence, eroding pro American sentiment abroad, and helping our enemies recruit foot soldiers.
Yet, reflecting its pattern of embracing secrecy while claiming transparency, the Obama administration has refused to declassify the report. It is only because neither the press nor the public know the facts that irresponsible Hollywood fiction proved so problematic and controversial.
Forgotten in commentary on Brennan’s confirmation were some troubling details suggesting that, on both torture and drone strikes, transparency remains inadequate.
First, Senators had to fight tooth & nail to secure even the most minimal disclosure from the White House. Second, other congressional committees also sought access to the OLC assassination memos, but were denied.
Finally, beyond disclosure of the OLC’s legal memos are important questions about how the standards in them are applied to real facts. The Obama administration and CIA still refuse to answer congressional questions beyond the memos—such as, “How much evidence does the President need to determine that a particular American can be lawfully killed?” These questions are crucial, but Brennan’s confirmation could ensure that Congress receives few answers.
How the facts suggest elastic powers
Brennan spoke to the committee of the “great care” taken to ensure that drone strikes kill only their intended targets. What little we know about them suggests otherwise.
A bipartisan filibuster of John Brennan’s nomination to lead the CIA riveted Washington on Wednesday. Senators from both sides of the partisan aisle, led by Sen. Rand Paul (R-KY), took to the Senate floor to force further debate on a nomination that should not proceed.
I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.
Brennan’s nomination presents a rare window of accountability, and Senators are right to use it as an occasion to challenge an administration prone to self-congratulation about transparency, even while extending government secrecy and executive fiat to unprecedented levels.
How we got here
Brennan was deemed unfit to lead the CIA four years ago, because of his record at an agency whose institutional hands remain stained by human rights abuses for which it has never faced (and indeed actively obstructed) justice.
Even worse than the CIA’s human rights abuses, or its self-serving destruction of evidence of international crimes, is an expanding set of disturbing claims by executive branch officials that must be rejected for our Constitution to survive.
Attorney General Eric Holder testified about the power to kill Americans without trial before the Senate Judiciary Committee on Wednesday, after sending a related letter to Sen. Paul the day before. His letter asserted the authoritarian power to kill Americans without trial, even within the United States, followed by congressional testimony arguing that Congress’ Authorization to Use Military Force (AUMF) in Afghanistan could also justify military action within the US.
Those conclusions, put simply, render our country unfit to be considered part of the free world, let alone its leader.
In 2001, Congress enacted the AUMF to enable the invasion of Afghanistan, not authorize domestic warfare. Moreover, it has already been stretched well beyond the limits of plausible interpretation: even before President Obama came to the White House, the AUMF was cited to justify the detention of US citizens in military custody without proof of crime.
Senators from both parties had previously raised concerns about assassination without trial, which is absolutely illegal under not only the US Constitution, but even the Magna Carta. The administration’s responses to their inquiries unfortunately make matters only worse.
This week’s developments
On the one hand, Holder claims that the authority to arbitrarily kill Americans within the US could be triggered only by an extraordinary event on par with Pearl Harbor or the 9/11 attacks. On the other hand, the few legal limits that executive officials have previously acknowledged are themselves routinely violated in practice. In other words, nothing would prevent this extreme power from being used abusively.
Until this week, the battle over Brennan’s nomination had focused on disclosure: whether the Holder Justice Department (and, in particular, its Office of Legal Counsel infamous for authorizing torture under the Bush demonstration) would give Congress key documents that members have long sought to identify the legal standards under which the administration conducts drone strikes targeting American citizens.
Comprehensive immigration reform, along with the fiscal cliff and sequester, has recently dominated Washington. But observers have overlooked how calls for stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.
Conservative members of Congress have demanded tighter enforcement as a condition of considering meaningful reform of federal immigration policy. But enforcement-first immigration reform could wreak havoc with the fundamental liberties of citizens. If libertarians recognized how conservative policy proposals threaten their interests, the debate could shift dramatically.
What enhanced immigration enforcement could look like
Immigration enforcement takes primarily two forms: border security and interior enforcement. Each poses a threat to Americans who value their own freedom. The border security debate hides the most severe potential pitfalls, only because the privacy implications of interior enforcement have at least been discussed in public.
Many conservatives want to lock down our borders even more than our federal agencies already have. Yet American’s borders have never been more secure. In 2012, our government spent $18 billion on civil immigration enforcement, more than combined spending on all agencies that enforce criminal laws.
Proposals to further tighten border security have included increasing the deployment of domestic surveillance drones, expanding immigration checkpoints, building a fence, and adding more agents to the already bloated rosters of CBP and ICE.
Whether at the border or within the US, the demand for tighter enforcement ignores reality: net migration across the southern border has already turned negative, driven by harsh profiling, alongside continuing stagnation in job growth, which has made immigration less economically attractive.
In other words, tighter border security and enhanced interior enforcement are unnecessary, at best. According to Marc Rosenblum from the Congressional Research Service, “additional investments at the border may be met with diminishing returns.”
Beyond diminishing returns, enhanced border security could prove nightmarish — not just for undocumented families, but also US citizens. Border security could diminish our own freedom to travel, while interior enforcement poses a covert threat to privacy.
Tuesday’s decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts’ constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.
Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.
Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.
Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.
A scandal in plain sight
The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting “a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,” including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.
In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.
Aside from generating an earthquake across Washington, the first results of the Times‘ expose included government threats to prosecute the journalists. Their only “crime” was exposing the public to an issue that should never have been secret in the first place. While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.
In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency’s abuses to continue.
Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.
That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.
Yesterday, I attended the Senate Intelligence Committee’s hearing on the nomination of John Brennan to lead the CIA. More accurately, I attended five minutes of the hearing, before Senator Dianne Feinstein (D-CA) kicked out the public after repeated criticism of Brennan’s record on torture, human rights, and extrajudicial assassination and executive fiat.
If the rest of the committee members did their jobs as well as Senator Ron Wyden (D-OR), the nation wouldn’t need protesters to ask the tough questions that no one in the White House or CIA has answered.
Some Senators raised important questions, but the hearing was generally disappointing: Brennan bobbed and weaved, evaded accountability for documented abuses, and refused either to offer more information to Congress, or to acknowledge that torture (which the CIA recently committed before obstructing justice by destroying dozens of videotapes documenting torture) is illegal.
Here’s a verse I wrote to interrupt the hearing, riffing on the strategic national security risks presented by drones (whose tactical usefulness is also dubious) and torture (which we know to be illegal and tactically useless at best, and actively counterproductive at worst).
While the committee never heard the issues I’d hoped to raise, several observers have written thoughtful pieces explaining why Brennan has not met the burden necessary to justify Senate confirmation as CIA Director. While they shed light on some important issues that Brennan has not resolved, several other questions remain. More below the jump….
If observers want to criticize the President, they should challenge his derogation in practice of the same values he professes.
Critics of Mr. Obama have described his inaugural address as radical. But insisting on values as fundamental as “equality before the law” and the “enduring strength of our Constitution” are hardly radical. Indeed, they are simply restatements of principles that have long united America.
If observers want to criticize the President, they should instead challenge his derogation in practice of the same values he professes in lofty speeches. Rhetoric is no substitute for reality, and given the President’s unfortunate extension of the Bush-Cheney assault on civil liberties, his administration deserves criticism.
Forgotten promises
The President seems no more inclined than his neo-con predecessors to heed longstanding constitutional limits on executive power. Indeed, his first term witnessed several extensions of the Bush-Cheney legacy.
Extrajudicial assassination using armed drone aircraft, the use of unmanned aerial drones for unwarranted domestic spying, the NSA’s dragnet domestic wiretapping, the FBI’s resurrection of COINTELPRO, the unprecedented crackdown on immigrants under President Obama, the use of immigration enforcement as a pretext to create a national biometric identification scheme for all Americans (including citizens), continued racial profiling in the drug war, and the new threat of military detention within the US, all reflect a dark side of President Obama’s legacy.
I’ve written at length about the secrecy pervading the administration’s national security efforts, which butcher constitutional rights in many ways that are unfortunately even worse than the sum of their parts.
If President Obama wants to leave a legacy in his second term, he need cite no transformative agenda. He need merely remember his own campaign promises from 2008, or the need to ensure accountability for documented recent violations by federal agencies, or alternatively the oath of office he adopted again this week.
Several looming policy issues offer opportunities for the administration to finally walk the President’s talk in its second term.
In addition to President Obama’s second inauguration (on which the People’s Blog for the Constitution will soon post a comment), yesterday was also a national holiday celebrating the life and work of Dr. Martin Luther King, Jr. In 2008, American Radio Works produced King’s Last March, an insightful documentary by Kate Ellis and Stephen Smith that NPR re-broadcast yesterday.
The program reminds listeners about the life of Dr. King, including not only his inspiring civil rights work, but also the disturbing examples of state surveillance and “neutralization” to which he was subjected for years preceding his untimely death.
With the FBI’s ressurrection of its war on the Constitution, BORDC’s 2011 video, COINTELPRO 2.0, offers a timely reminder of this unfortunate history:
According to American Radio Works, the “FBI’s War on King” included “an extensive program of surveillance and harassment…[u]nder the guidance of FBI Director J. Edgar Hoover – and with the permission of Attorney General Robert F. Kennedy….”
Bigelow and Ortiz are each scapegoats, focal points for debates forced by the failures not of individuals, but of entire institutions.
Two tragic events last Friday have prompted heated debate about torture, secrecy, freedom of information, and prosecutors run amok. But are critics assigning blame where due, or merely where convenient?
And is the convenient option too charitable, letting powerful systems of oppression off the hook in favor of scapegoating only the most visible perpetrators?
First (only because it’s an anniversary and was therefore predictable) was the 11th year of military detention at Guantánamo Bay, where prisoners under US control have endured torture–and in some cases, been murdered in custody while their deaths have been presented in public as suicides.
The military detention scheme at Guantánamo has existed for over a decade, but the use of torture remains clouded in secrecy.
In the middle of the raging healthcare debate in 2009, the one thing Congress could agree on was giving the Pentagon authority to hide evidence of its own criminal trail. Even though multiple courts ordered our government to release photos and videos held by the Pentagon that document widely implemented torture policies, that substantial body of criminal evidence remains secret to this day.
One of President Obama’s key appointments to the Justice Department was stalled for a year, before being withdrawn, because she committed the heresy of suggesting that DOJ actually enforce the law by prosecuting officials for human rights abuses.
What do we know about torture? Apparently, only what Hollywood tells us.
Kathryn Bigelow’s controversial film Zero Dark Thirty supplies the public with plenty of facts (whether real or imagined) to fill the vacuum. Is it a work of fiction? A documentary? A Rorschach test?
But who are the real culprits? Is it Hollywood’s fault that the public remains in the dark?
Three particular figures have gotten off especially easy–first when they committed crimes, again when they left government to return to positions of influence instead of prison cells, and yet again as Bigelow draws fire for depicting their crimes. Dick Cheney, John Yoo, and Ninth Circuit Judge Jay Bybee are the former officials who authorized torture in the first place, hid their illegal decisions from the American public, and then lobbied to avoid accountability for their universally abhorred crimes.
Bigelow is no hero. But it’s not her fault that the American people don’t have enough facts to recognize her movie as fiction.
A bona fide genius and dedicated public servant, Aaron did more for the world in his 26 years than most people do in a lifetime. (Full disclosure: my colleagues and I at BORDC often collaborate with Demand Progress, the advocacy organization that Aaron co-founded.)
His supporters have many good reasons for anger at the senseless prosecution that drove Aaron from a world that needs him, and others like him, so desperately. But who most deserves our criticism?
The impending release of the Hollywood film Zero Dark Thirty has sparked a vigorous debate about torture, which has reinvigorated cries for accountability. A consensus among informed observers has emerged that torture was never actually helpful in securing useful intelligence information to support our nation’s wars abroad.
But the question of efficacy has obscured more important issues. Largely absent from the debate have been apparently forgotten concerns about human rights, accountability, and the rule of law.
Just to reiterate the consensus: torture did not help national security. The chairs of the Senate intelligence and armed services committees, in addition to a recent Republican presidential nominee and torture survivor, and the acting head of the CIA, have all publicly announced that the film’s depiction of torture exaggerates its usefulness.
In fact, as they have all confirmed, the information that led to the death of Osama bin Laden was gained through traditional intelligence methods, not the unconstitutional “enhanced interrogation” human rights abuses illegally concocted by former Vice President Dick Cheney, Ninth Circuit Judge Jay Bybee, and others.
Not only was torture unhelpful as an interrogation method, it was actively counterproductive: it fueled the recruitment of new terrorists by our nation’s enemies, and undermined our nation’s moral standing in the world, degrading the “smart power” that was responsible for our triumph over the Soviet bloc and the relative peace in the decades following WWII.
Yet in the wake of torture, our government has turned a blind eye to enforcing the law, ensuring that it will recur by endorsing a regime of unaccountability in direct violation of the Eighth Amendment of the US Constitution, the precedent from the Nuremberg trials, the UN Convention Against Torture (CAT), and our federal statute enforcing the CAT.
The Obama administration commits violations of human rights every day it fails to pursue accountability for the architects of the Bush administration’s torture program. The first term decision to “look forward, not backward” reflected a capitulation to political headwinds, but it also heralded a great deal more.
Important criticism of the Justice Department’s suppression of press freedom remains inadequate.
Brennan’s nomination presents a rare window of accountability, and Senators are right to use it as an occasion to challenge an administration prone to self-congratulation about transparency, even while extending government secrecy and executive fiat to unprecedented levels.
A bona fide genius and dedicated public servant, Aaron did more for the world in his 26 years than most people do in a lifetime. (Full disclosure: my colleagues and I at BORDC often 
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