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Five Ways US National Security Policies Will Erode Civil Liberties in 2012

Brace yourself: Drone killings of US citizens will continue, more government whistleblowers will be brought to trial, and Washington will become even more secretive.

| Mon Mar. 19, 2012 5:18 PM EDT

3. Ever More Secrecy (Ever Less Transparency)

"Necessary" secrecy has been the fallback explanation for much of the information that has been withheld from public scrutiny since 9/11. The military commissions at Guantanamo will proceed, for instance, in part on the claim that, if the accused, many of whom have already been held for a decade, were to be tried in federal court, too much would be revealed that could somehow compromise the country's security.

To counter civil libertarian claims that secrecy is only an attempt to hide embarrassing or wrongful behavior, the current administration has promised "transparency" in the military commissions scheduled to begin later this year. Efforts at transparency, announced last fall, included a website where documents—filled with redactions (blacked-out sections)—could be accessed by the public, and a closed-circuit viewing, albeit with a 40-second delay, for the media and members of the victims' families.

It has taken next to no time, though, for the government to contradict those vows of transparency, ensuring that, in the polite words of Spencer Ackerman of Wired's Danger Room blog, Guantanamo will remain "not a place of openness." Meanwhile, all mail between the detainees and their military defense counsels is being screened, a practice that understandably has those lawyers in an uproar.

In the category of non-transparency and the growth of secrecy as a first principle of government, there is the administration's elaborate dance of nondisclosure over a memo produced by the Justice Department's Office of Legal Counsel (OLC). It was evidently written to justify the assassination by drone in Yemen last September of American citizen Anwar al-Awlaki, alleged to have been the "bin Laden of the Internet."

Until recently, the administration has ducked questions about al-Awlaki's killing and that of another American citizen, Samir Khan, the editor of the al-Qaeda magazine Inspire. In January, the government announced that Attorney General Eric Holder would soon make public the OLC memo that legalized the killing, but delayed the Attorney General's explanation until early March. Meanwhile, the New York Times and the ACLU filed a Freedom of Information Act (FOIA) request for its release. On March 5th, Holder finally gave a detailed explanation of the tortured reasoning behind the targeted killing of al-Awlaki, but still, no memo seems to be forthcoming.

During the past year, the imposition of secrecy on government activities of all sorts has only become more pronounced. To offer just one egregious example among many, consider the government's behavior in the case of former CIA agent Jeffrey Sterling. At its request, a federal judge has now agreed to allow it to invoke the "silent witness rule." In other words, she will let government documents be shown to the jury without being made public, on the grounds, according to prosecutors, of "national security."

After a decade in which the customary practice in matters of "security" has been to sweep all too many government documents of significance into the shadows under that rubric of national security, this should hardly be surprising. Americans now know ever less about what the government they elected does. If it were not for the FOIA lawsuits of the ACLU and others, very little of what we do know about torture, warrantless surveillance, and other instances of government malfeasance would ever have seen the light of day. Consider the increasing number of whistleblower prosecutions as one more way to try to shut government activities off from the eyes of the citizenry.


4. Ever More Distrust (Ever Less Privacy)

For years, the prospect of warrantless wiretapping in the name of national security has had a chilling effect on Americans who have opposed government policies in the war on terror. In 2008, President Bush signed a new FISA Amendments Act (FAA), which authorized the government to snoop on citizens with minimal oversight from the already secretive Foreign Intelligence Surveillance Courts. (They were set up in 1978 to oversee the granting of surveillance warrants against potential foreign intelligence agents.) The Obama administration has continually opted to uphold this power and the government's freedom to warrantlessly tap electronic communications between people outside the United States and people inside the country in the name of national security.

Meanwhile, the latest revelations in the ever-more-distrust, ever-less-privacy sweepstakes are led by news that the New York City Police Department (NYPD) has implemented surveillance programs that violate the civil liberties of that city's Muslim-American citizens. The NYPD infiltrated mosques and universities, collecting information on individuals suspected of no crimes, in conjunction with a CIA officer (now withdrawn) using methods traditionally reserved for that agency.

This surely represents, however informally, an abrogation of the CIA's mandate to conduct its surveillance only abroad, and it's likely that no one involved will pay a penalty for it. In addition, in a striking combination of security overreach and police profiling, the NYPD has been investigating and surveilling Muslim-American citizens well outside the city limits—from New Haven, Connecticut, to Newark, New Jersey.

To make matters worse, the government just approved the use of surveillance drones as part of a growing law enforcement arsenal for gathering information in the United States. On February 14th, President Obama signed a bill allowing for the use of such drones in a broad array of arenas, ranging from business activities to law enforcement.

The message is clear enough: this year (next year and the year after) will be the year of more snooping. For law enforcement, your life is apparently an open book.


5. Ever More Killing (Ever Less Peace)

Scarcely a day goes by without news of the use of Predator and Reaper drones to kill individuals in foreign countries, including in recent years Afghanistan, Pakistan, Iraq, Yemen, Somalia, Libya, and the Philippines. It's as if the CIA and the military have been handed a new toy that they just can't refrain from using, or teaching others to use. According to the Atlantic, "Conservative estimates suggest hundreds of noncombatant civilians have been killed in Pakistan alone."

Meanwhile, the drumbeat for war with Iran continues to build. Faced with the prospect of an Israeli attack on the Islamic Republic, the Obama administration has refused to definitively back away from the prospect of becoming part of that war.

"Iran's leaders should understand that I do not have a policy of containment," the president said. "I have a policy to prevent Iran from obtaining a nuclear weapon. And as I have made clear time and again during the course of my presidency, I will not hesitate to use force when it is necessary to defend the United States and its interests."

In fact, the urge to stop a potentially disastrous confrontation, which could seriously affect the price of oil and the global economy, has sent high military and civilian officials winging from Washington to Israel with warnings against an attack on Iran. Still, war continues to be treated by diplomats and others almost as a fait accompli.

The news then is certainly grim, and moving in one clear direction—the use of the law, or at least the Justice Department's version of the law, to justify whatever acts the government feels are necessary against whomever they deem to be the enemy. Attorney General Holder summed the situation up tellingly in his defense of the al-Awlaki killing.

In significant detail, he explained that the killing of an American citizen (and terror suspect) was lawful, despite the fact that it brought into question the guarantee of due process under the Fifth Amendment, and despite the guarantees offered by the laws of war. "Due process," he declared, "is not judicial process." It was a startlingly honest admission of something new under the American sun: due process is now what the president and his closes advisors decide it is, a constitutional rethinking of the first order to justify the "targeted killing" of an American citizen.

To sum up, the legal gray zone Washington has, over the course of a decade, plunged us into—and everything that goes with it, including punitive measures, attempts to bypass constitutional guarantees, the spread of secrecy and surveillance, a growing distrust of American citizens, and straightforward killing—isn't something we will soon put behind us. The move away from the rights and liberties enshrined in the Constitution and the law is very clearly the way of the American future in our new age of enemies.

Karen Greenberg is the director of the Center on National Security at Fordham Law School, a TomDispatch regular, and the author of The Least Worst Place: Guantanamo's First One Hundred Days, as well as the editor of The Torture Debate in America. Adam Brody, Rebecca Kagan, and Sasha Segall contributed research to this article. To listen to Timothy MacBain's latest Tomcast audio interview in which Greenberg discusses a new American state of "legal limbo," click here, or download it to your iPod here. Follow TomDispatch on Twitter @TomDispatch and join us on Facebook. To stay on top of important articles like these, sign up to receive the latest updates from here.

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