Glenn Greenwald: Another Brutal Year For Liberty

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http://www.salon.com/opinion/feature/2009/01/01/civil_liberties/?source=newsletter

Another brutal year for liberty

The good news is that it's clear what the Obama administration must do to end the decade-long war on the Constitution.

By Glenn Greenwald

Jan. 1, 2009 | Befitting an administration that has spent eight years obliterating America's core political values, its final year in power -- 2008 -- was yet another grim one for civil liberties and constitutional protections. Unlike the early years of the administration, when liberty-abridging policies were conceived of in secret and unilaterally implemented by the executive branch, many of the erosions of 2008 were the dirty work of the U.S. Congress, fueled by the passive fear or active complicity of the Democratic Party that controlled it. The one silver lining is that the last 12 months have been brightly clarifying: It is clearer than ever what the Obama administration can and must do in order to arrest and reverse the decade-long war on the Constitution waged by our own government.

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Not even the most cynical political observer would have believed that it was the ascension of Harry Reid and Nancy Pelosi that would be the necessary catalyst for satisfying Bush's most audacious demands, concerning his most brazenly illegal actions. If anything, hopes were high that Democratic control of Congress would entail a legislative halt to warrantless eavesdropping or, at the very least, some meaningful investigation and disclosure -- what we once charmingly called "oversight" -- regarding what Bush's domestic spying had really entailed. After all, the NSA program was the purified embodiment of the most radical attributes of a radical regime -- pure lawlessness, absolute secrecy, a Stasi-like fixation on domestic surveillance. It was widely assumed, even among embittered cynics, that the new Democratic leadership in Congress would not use their newfound control to protect and endorse these abuses.

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A similar scenario played out with the attempt in February to redress America's torture crisis by enacting an amendment to the Defense Authorization Act compelling all government agencies, including the CIA, to comply with the Army Field Manual when interrogating detainees. The most immediate effect of such a law would have been to impose an absolute ban on the use of waterboarding, along with any other coercive tactics -- torture techniques -- which the Manual does not explicitly authorize.

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The fate of civil liberties in the judiciary was much more mixed, punctuated with several significant victories. Undoubtedly the most important win was the Supreme Court's June decision in the Boumediene case, which struck down as unconstitutional one of the worst constitutional assaults of the Bush era: Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantánamo detainees and prohibited them from challenging their detention in a federal court.

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One of the most potentially damaging judicial developments of the year was a horrendous ruling issued in July by the conservative Fourth Circuit Court of Appeals in the case of Ali Saleh Kahlah al-Marri. The al-Marri court actually upheld the president's claimed authority to detain legal residents and even U.S. citizens in a military prison as "enemy combatants," rather than charge them in a civilian court with a crime. But the damage done by that ruling was mitigated substantially when the U.S. Supreme Court announced just two weeks ago that it has agreed to review the al-Marri ruling, and civil libertarians are cautiously optimistic that the Court will likely reverse it.

For the last seven years, Democrats have repeatedly cited GOP political dominance to excuse their wholesale failures to limit, let alone reverse, the devastating war waged by the Bush administration on America's core liberties and form of government. With a new Democratic president and large majorities in both Congressional houses, those excuses will no longer be so expedient. As dark and depressing as these last seven years have been for civil libertarians, culminating in an almost entirely grim 2008, there is no question that the Obama administration and the Democrats generally now possess the power to reverse these abuses and restore our national political values. But as the events of the last 12 months conclusively demonstrate, there are substantial questions as to whether they have the will to do so.

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