This is the third installment in a series suggesting opportunities for the Obama administration, in its second term, to finally pursue his 2008 campaign promise to restore civil liberties.
The first installment in this series reviewed President Eisenhower’s prescient warnings about “the military-industrial complex…endanger[ing] our liberties or democratic processes,” and examined casualties of the national security state, including transparency, accountability, and democratic legitimacy, with a particular focus on the NSA’s dragnet spying program authorized by the FISA amendments of 2008 now before the Senate.
Part II discussed further costs of counter-terrorism, including budgetary waste and constitutional violations, concluding with an argument that closing Guantanamo Bay should not be the highest priority in the civil liberties arena.
Part III, below, will suggest the first of two policy “menus,” appropriate for whichever political attitude the administration adopts in the wake of 2012 presidential election. Before turning to opportunities to advance accountability requiring political boldness, this installment will focus on the relatively easier opportunities for the Obama administration to support transparency goals it has long proclaimed.
The casualties of our national security state have grown to include transparency, accountability, and democratic legitimacy, as well as the federal budget, our constitutional rights, and most recently (and with unmatched irony), the former director of the CIA.
Having recently secured re-election to a second term, President Obama should not sit idly by while these problems continue to fester. With all eyes on the federal budget and the looming fiscal cliff, there has never been a better time to act on the president’s longstanding promises to restore liberty and security following the Bush administration’s assault on the Constitution.
Transparency: a transpartisan value for a conciliatory second term
Should the administration replicate the conciliatory political strategy that dominated its first term, no issue offers the chance to build goodwill from as many political corners as supporting long-overdue transparency. Indeed, transparency is favored by the most active elements of each of the major parties, with the digital privacy community joining civil rights advocates alongside libertarian critics of the president.
Advancing transparency would not only gain the enthusiastic support of observers from across the political spectrum, it would also ensure future opportunities to engage underlying issues such as surveillance, torture, and profiling, by enabling public discussion of news cycles that would otherwise remain entirely secret. The administration has had a chance, over the course of its first term, to grown more savvy about how Washington works. Have officials learned the value of enabling independent institutions, such as the press, to do their jobs?
The timing never been better within recent memory. While some in the intelligence community may support continuing secrecy, President Obama would enjoy plenty of cover should he finally fulfill his promises from 2008, either to restore the balance between liberty and security in the abstract, or his specific promise to reign in abuses at the NSA.
Given President Obama’s support for (and even tactical involvement in) the CIA’s drone program, despite its extrajudicial assassination of even US citizens without charge or trial, he has built a significant reservoir of goodwill among the nation's intelligence agencies. Setting aside the counter productivity and human rights concerns with extrajudicial assassination, finally walking the administration’s talk about transparency would be a politically unassailable strategy, appealing to the president's progressive base, as well as libertarian and conservative critics alike.
With the intelligence community in disarray following the fall from grace of CIA Director Petraeus, and a looming struggle over the allocation of inevitable budget cuts in the face of the “fiscal cliff,” the time is ripe to rationalize our nation's intelligence activities, and ensure their exposure to the disinfectant light of day.
Opportunities to advance transparency: protecting whistleblowers
Administration officials enjoy several chances to do so even before the second term begins. Several related to protecting federal whistleblowers.
The Senate made the Whistleblower Protection Act its first post-election priority, sending the bill to the president’s desk on November 13, after the House approved it in September. Signing it into law is a no-brainer, especially given its broad bi-partisan support—but it is not enough, by a longshot.
Last month, the White House issued a new directive covering whistleblowers employed by national security agencies, who (with the exception of the Transportation Security Administration) are not protected by the Whistleblower Protection Act. While the “directive aims to ensure intelligence and national security employees are able to legally report agency wrongdoing and be protected from retaliation,” however, it is ultimately “toothless,” according to the National Whistleblower Center.
Section G, the directive’s concluding paragraph, however, explicitly disavows any new legal rights for (and expressly prohibits any government liability to) whistleblowers. While the Directive does require intelligence agencies to provide a review process for employees suffering from retaliation, it ultimately allows the foxes to guard the henhouse.
Beyond signing the Whistleblower Protection Act, the administration should also craft meaningful protections for national security agency employees who resign their careers to serve the public trust, including access to jury trials for all whistleblowers, independent due process for employees of intelligence agencies, and coverage for federal contractors.
At the very least, the administration should resign its war on federal whistleblowers. The unprecedented number currently facing prosecution exceeds the total number of national security whistleblowers previously prosecuted over the entire history of the United States. President Obama could place a moratorium on further whistleblower cases, and suggest prosecution only where the disclosure actually harms national security, rather than merely the reputations of intelligence agencies indulging fraud and waste.
While statutes must wind their way through the congressional process, the White House Directive, and decisions about prosecutorial discretion, represent procedural options to advance transparency within the administration’s unilateral control, even without congressional support.
Opportunities to advance transparency: enabling congressional and judicial oversight of surveillance and torture
If protecting whistleblowers seems too demanding, the administration could alternatively direct the NSA to answer tough questions from Senator Wyden (D-OR), whose hold on the reauthorization of the 2008 FISA Amendments aims to help advance transparency that the NSA has continued to evade.
Having already admitted to violating the law—even under powers granted in 2008 to legalize plainly unconstitutional spying initiated in secret by the Bush administration—the agency has refused to disclose how many Americans have been impacted, hiding instead behind a wall of secrecy supported thus far by the Obama administration.
That wall of secrecy has extended beyond the refusal to answer congressional questions about the warrantless wiretapping program. Indeed, every time the NSA has faced judicial review for systematic violations of the Fourth Amendment, the Obama administration has supported the Bush era tactic of seeking immunity by asserting the state secrets privilege. The wall of secrecy has also expanded to protect not only the NSA, but also the FBI, and even private corporations complicit in torture.
Instructing a single federal agency to comply with congressional information requests, or to resign a particular radical legal theory pioneered by the Bush administration, would hardly squander the political capital that President Obama built in winning re-election, especially given the transpartisan value of transparency.
To the extent administration officials correctly perceive this post-election moment as the zenith of the president's influence, and claim a mandate from the election results to pursue a bold agenda, however, even bolder options emerge to reign in the abuses of the national security state. For instance, the administration could throw its formidable political weight behind the state secrets protection act, which was among the president’s clearest priorities during the forgotten 2008 campaign.
The boldest thing the administration could do to advance transparency would be to instruct the Defense Department to release the thousands of photos and videos it continues to hold secret documenting a policy of torture under the Bush administration that ranged well beyond the behavior of “a few bad apples.”
With long overdue transparency continuing to languish, the cabal responsible for Bush era abuses continues to aggressively skew national security policy, placing the administration on its heels. In contrast, transparency could help advance accountability, which would in turn enable reason to return to our national security efforts.
The final installment in this series will examine opportunities to advance accountability in President Obama’s second term.
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Nice to see the DOJ sort of recognize the 4th amendment... How very big of them! t.co/AiI4TV1Eca t.co/6GCc2s27TQ
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