Later On

Excellent article by Jack Balkin:

In 2006, Sandy Levinson and I predicted that the next president, whether Democratic or Republican, would ratify and continue many of President George W. Bush’s war on terrorism policies. The reason, we explained, had less to do with the specific events of September 11th, and more to do with the fact that the United States was in the process of expanding the National Security State created after World War II into something we called the National Surveillance State, featuring huge investments in electronic surveillance and various end runs around traditional Bill of Rights protections and expectations about procedure. These end runs included public private cooperation in surveillance and exchange of information, expansion of the state secrets doctrine, expansion of administrative warrants and national security letters, a system of preventive detention, expanded use of military prisons, extraordinary rendition to other countries, and aggressive interrogation techniques outside of those countenanced by the traditional laws of war.

The reasons for the creation of the national surveillance state were multiple; they concerned the rise of digital networks, changes in the technology of warfare, and the concomitant rise of networks of non-state actors as serious threats to national security. These problems would present themselves to any President, whether liberal or conservative, Democratic or Republican.

Barack Obama has largely confirmed these expectations, much to the dismay of many liberals who supported him. After issuing a series of publicly lauded executive orders on assuming office (including a ban on torture), he has more or less systematically adopted policies consistent with the second term of the George W. Bush Administration, employing the new powers granted to the President by Congress in the Authorization of the Use of Military Force of 2001, the Patriot Act of 2001 (as amended), the Protect America Act of 2007, the FISA Amendments Act of 2008 and the Military Commissions Acts of 2006 and 2009. These statutory authorizations have created a basic framework for the National Surveillance State, and have made Obama the most powerful president in history in these policy areas.

The choice we face today, therefore, is not whether we will have a National Surveillance State, but the kind of National Surveillance State we will have– one that does its best to protect privacy, civil liberties and internationally recognized human rights in changing conditions, or one that debilitates or eliminates these protections and guarantees, and brings us ever closer to emergency government as a normal condition of politics.

One might have hoped that,given his campaign pronouncements, an Obama Administration would have implemented a framework that is closer to the values of civil liberties. But his record in office has been decidedly mixed, and remarkably similar in important respects to the record of the Bush Administration (with the major difference being that, instead of making unilateral assertions of executive power, as Bush did in his first term, Obama can rely on Congressional authorization of much of what he does as a consequence of the framework statutes I mentioned above.)

In an interview with Charlie Savage of the New York Times in July of 2009, several months after Obama took office, I explained that we were witnessing a normalization of the National Surveillance State and its basic policies. Here is Charlie recounting the substance of our conversation with Glenn Greenwald:

CHARLIE SAVAGE:…You know, I had this interesting conversation when I was working on this article that came out this morning with Jack Balkin at Yale Law School, and he compares this moment to when Dwight Eisenhower took over, in 1953, and after FDR and then Truman had built up the New Deal administrative state, which Republicans hated, but then Eisenhower, instead of dismantling it, just sort of adjusted it with his own policies a little bit, and kept it going. And at that point, there was no longer any sort of partisan controversy about the fact that we were going to have this massive administrative state; it just sort of became a permanent part of the governing structure of the country.

And in the same way he said in 1969 when Richard Nixon took over from LBJ, he did some adjustments to the great society welfare state that LBJ had built up, but he didn’t scrap it. And at that point, Republicans and Democrats had both presided over the welfare state and the welfare state became part of just how government worked.

That in the same way, Obama now, by continuing the broad outlines of the various surveillance and detention and counter-terrorism programs, is draining them of plausible partisan controversy, and so they are going to become entrenched and consolidated as permanent features of American government as well, going forward.

My view, as I expressed to Charlie Savage in that interview, is that Obama has played the same role with respect to the National Surveillance State that Eisenhower played with respect to the New Deal and the administrative state, and Nixon played with respect to the Great Society and the welfare state. Each President established a bi-partisan consensus and gave bi-partisan legitimation to certain features of national state building.

After the Obama presidency, opponents of a vigorous national surveillance state will be outliers in American politics; they will have no home in either major political party. Their views will be, to use one of my favorite theoretical terms, “off the wall.”

Nor should this be surprising. The causes that led to the rise of the National Surveillance State and the bureaucratic interests that led to its continuation and expansion, have continued unabated.

Yet, one might hope that the Obama version of the National Surveillance State might turn out to be more benign and friendly to civil liberties than the Bush/Cheney version. To a certain extent this is true, but not by as much as you might think. On several fronts, Obama has continued Bush era policies of preventive detention, surveillance, and protection of state secrets. And in other respects, he has gone further.

All of which brings me to Private Bradley Manning. . .
 

Continue reading. It’s an important article that shows clearly where the country is headed.