an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Bradley Manning, Barack Obama and the National Surveillance State
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. The Obama Defense Department's treatment of Manning, a American citizen, has employed the sort of harsh techniques that candidate Obama and his supporters would have loudly decried if applied to Guantanamo Bay inmates or to another American citizen, Jose Padilla.
It's worth noting that if Private Manning were a prisoner of war, his treatment at the hands of the Obama Administration would violate the Geneva Conventions; indeed, if he were an non-uniformed enemy combatant, his treatment would probably violate Common Article III. Apparently, President Obama has gone Attorney General Alberto Gonzales one better. Not only must he believe that the protections of the Geneva Conventions are quaint, he must also think the same of the Bill of Rights, at least as applied to leakers--or at least, leakers whom the President and his associates did not authorize.
P.J. Crowley was fired for pointing out the obvious, that the treatment of Manning was counterproductive. He forgot to add, illegal and unconstitutional as well. By telling us the obvious, Crowley forced Obama to acknowledge the fact of the Defense Department's actions in public, and to report calmly to the press that that the DOD had informed him that everything is perfectly acceptable.
Of course, since the DOD is mistreating Manning, what exactly did he expect that they would tell him? This is a bit like President Bush asking John Yoo whether the United States is committing torture. Of course John Yoo is not going to tell you that you are committing torture; the very reason he is there is to tell you that everything is perfectly fine.
Obama, of course, well understood the situation he was placed in by Crowley's remarks, and he did not like it one bit. And so Crowley left the Administration.
What the Manning episode demonstrates, however, is that Obama has little interest in spending political capital in reining in many of the excesses of the National Surveillance State. Quite the contrary: he, like future Presidents, will sincerely believe that he needs every ounce of discretion he can get to protect the nation's security. Therefore, if the DOD informs him that we need to make an example of Bradley Manning so there will be no future leaks of sensitive information by disgruntled government employees, then this is a good and proper thing to do. Legal and constitutional scruples against harsh treatment of Manning are, to quote Attorney General Gonzales, "quaint;" entirely inappropriate in the dangerous times in which we live.
In July 2009, I explained that we were witnessing the bipartisan normalization and legitimation of the National Surveillance State, in which the President's power to detain, surveil, and punish at his discretion would be greatly expanded. In the treatment of Bradley Manning, we can see a glimmer of what this will mean in practice. Unless there is a public outcry, we have no guarantee that this exceptional incident will prove truly exceptional. After all, if a liberal Democratic President is willing to look the other way in this case, what can we expect of future presidents of either party? Posted
by JB [link]