Academic journal article Presidential Studies Quarterly

The Law: Barack Obama and Civil Liberties

Academic journal article Presidential Studies Quarterly

The Law: Barack Obama and Civil Liberties

Article excerpt

President Obama's most enthusiastic supporters continue to give him the benefit of their doubts. They know that the many challenges he faces are enormously difficult, but they still hope that he might, in the fullness of time, get around to restoring the rule of law and the promise that is America. Unfortunately, their hope is misplaced.

The founders' America, which was hijacked by cowboy America during the Bush years, continues to be held hostage by the same, lawless forces. President Obama has not stood up to the advocates of war without end or sought to punish the abuses that go with it. On the contrary, he has capitulated, as certainly as President Lyndon Johnson caved when he escalated a war he knew could not win in Vietnam rather than suffer Republican charges that he and his party were "soft on communism."

This is the tragedy of modern America, a frightened nation dominated by politicians who imagine each encounter in their global war on terrorism as just another episode of cowboys and Indians (Cohn 2007). They do not want equal justice under law for all suspects, which our Constitution promises. They seek vigilante justice, enforced by torturers and military commissions, while denouncing civilian courts and traditional rules of evidence as outmoded impediments to public safety (Editorial 201 lb). Driven by a bloated sense of manifest destiny, these vicarious gunmen are as indifferent as Osama bin Laden to the inevitable reprisals that revenge-driven policies provoke. They live in the moment, trashing constitutional government at home and endangering U.S. troops abroad (Chermerinsky 2010).

Looking Forward

During his first year in office, President Obama urged our economically distressed nation to forget the Bush administration's crimes. "I don't believe that anybody is above the law," he told an ABC News interviewer. "On the other hand, I also have a belief that we need to look forward as opposed to looking backwards" (Koppelman 2009). With this Orwellian doublespeak, the president encouraged Americans to forget that President George W. Bush did not just violate the law; he attacked the rule of law itself (Pyle 2009). Bush's cowboys did not just break a few laws; they insisted that the military and Central Intelligence Agency (CIA) are above all law and can kidnap, detain, torture, and even murder alleged terrorists with impunity. As a result, thousands of helpless, often innocent, prisoners were subjected to unspeakable cruelties, including sexual and religious humiliation (Greenberg and Dratel 2005; Kurnaz 2010; Mayer 2008).

Some prisoners died. Others went mad; still others committed suicide. The United States was disgraced, and its soldiers were endangered as thousands of enraged Muslims, bent on revenge, joined al-Qaeda and the Iraqi resistance.

President Obama was elected in no small part because he promised to end this national shame. He was awarded the Nobel Peace Prize less for anything he did during his first months in office than for his promises to close the infamous prison at Guantanamo and stop torturing prisoners. In accepting the prize, Obama affirmed those promises, and then acknowledged, perhaps more candidly than he realized, that "even those of us with the best intentions fail to right the wrongs before us" (Obama 2009).

His failure to right those wrongs has not been inadvertent. From the moment he took office, Obama refused to hold his predecessors accountable for their crimes (Johnson and Savage 2009). Prosecuting President Bush and his aides would only inflame Republicans, he reasoned, leading them to accuse Democrats of being "soft on terrorists" and undermining the fight against al-Qaeda. Those accusations would distract his administration from its efforts to reclaim the economy, extend health care, end two wars, and address global warming. In this imperfect world, with his limited political resources, Obama said, he must be "realistic," which means not only refusing to prosecute those who designed the torture policy, but accepting their contrived claim, secretly imposed on dissenting experts in the military, State Department, and CIA, that the law against torture was somehow unclear (Johnson and Savage 2009). …

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