Kautzman’s AP GO PO Blog

It wasn’t so long ago that Barack Obama saw paths around many of the civil-liberty dilemmas that President Bush faced when he launched a war on al-Qaeda around the world. The freshman Senator from Illinois believed, and often claimed, that the White House could and should have avoided the shame of Guantánamo Bay, resisted the urge to engage in torture and shunned domestic eavesdropping.

Such easy exits may be harder to come by now that Obama is preparing to take over as Commander in Chief. Over the past eight years, the Bush Administration has erected a new array of military detention camps, interrogation methods and spy programs of questionable legality. During the presidential campaign, Obama promised to dismantle much of that apparatus, arguing that the Bush Administration’s walk on the dark side had eroded freedoms at home and damaged America’s reputation abroad. But doing so will take more time and prove more complicated than some of his supporters may realize.

In some ways, it makes political sense to go slowly. Ever since 9/11, Obama’s party has been squeamish about walking point on civil liberties out of fear that Republicans would wrap such a move around their necks at election time. And so, though civil libertarians may holler, the Obama team is likely to put the emphasis on national security as it begins to explore options for undoing the policies of the Bush-Cheney era. Here’s a look at what the new President may seek to change and what he may leave in place:

Torture

Once he is sworn in, Obama could simply order a government-wide halt to waterboarding and any other questionable interrogation techniques that have been judged legal during the past eight years. The Executive Order would have to be sweeping and reach deep into the government’s darker recesses. That’s because the Bush team has written so many legal memos okaying various techniques for interrogators working at a wide range of agencies. Some of those opinions have been disclosed publicly, but an unknown number remain classified. Obama will need to direct his Attorney General to issue new legal guidance that supersedes all those legal opinions, seen or unseen, if he hopes to prevent a return to such practices in the future. Former federal prosecutor and onetime trial judge Eric Holder, Obama’s pick to lead the effort as the top man in the Justice Department, earned a reputation as a relatively moderate legal thinker when serving there as a senior official in the Clinton Administration. That concerns some civil libertarians. “If you leave these on the books, you leave a bunch of loaded guns that future Presidents and agency heads can pull out and shoot when they want to,” says Anthony Romero, executive director of the American Civil Liberties Union.

Guantánamo

Obama could fulfill his campaign pledge to close Gitmo by simply issuing an Executive Order. But that would pose the question of what to do with the 225 suspected terrorists detained there who would suddenly have no home. If brought to the U.S. for trial, they would fall under constitutional guarantees of due process, which includes the right to confront their accuser and review all evidence against them. That may not fly with top terrorism hunters, who rely on informants and classified evidence. Because some of the evidence looks to have been gathered during harsh interrogations that may now be regarded as illegal and therefore inadmissible in court, building criminal cases against some detainees may be impossible. That raises the danger of avowed terrorists walking away from U.S. custody on a technicality. “These are enormously complicated problems,” says Benjamin Wittes, a Brookings Institution fellow. “It’s very easy to say, ‘Put everybody on trial.’ But we still haven’t figured out what our trial system looks like for these terrorism cases.”

And even if Gitmo is shuttered, that still leaves the matter of those militants captured more recently in the wars in Afghanistan, Iraq and elsewhere whom Obama says he intends to more fully prosecute. Such knotty questions have led some experts to bet that while he will scale Gitmo back as quickly as possible, Obama won’t fully close it in 2009. They point out that the Bush Administration has already quietly discharged some 500 of the 700 prisoners who have been held there.

Obama may opt to release dozens of others and insist that the remaining handful of high-profile cases be heard in either federal or military courts in the U.S. Already dozens of Guantánamo cases are moving through the federal court system following a pivotal Supreme Court ruling in June, and the Bush Administration is grappling with two separate rulings from federal judges ordering the release of 22 detainees.

Renditions and Secret Prisons

There is no doubt that the murkiest corner of the shadow war on terrorism has been the CIA’s kidnapping suspected terrorists and shipping them to secret prisons around the globe–where obeying the Geneva Conventions is more an exception than the rule–a practice known as rendition. Unfortunately, some of those snatched by CIA officers were innocent. German citizen Khaled el-Masri was one such victim. El-Masri was vacationing in Macedonia in December 2003 when authorities arrested him on wrongful suspicions that his passport was fake. A tragic case of mistaken identity then played out. El-Masri has the same name as an al-Qaeda operative being hunted at the time by CIA officials, and they took custody of el-Masri in Macedonia. Operatives from the agency beat and drugged el-Masri before whisking him to a secret prison in Afghanistan known as the “Salt Pit.” Eventually el-Masri’s captors realized they had the wrong man and let him go, dumping him on a mountain road in Albania.

No one knows how many suspected terrorists have been grabbed by the agency over the past eight years. Already, the CIA has transferred at least 14 detainees from secret prisons to Guantánamo. Dozens or even hundreds of others may still be imprisoned at secret CIA facilities around the world. As many as 20 may have been victims of mistaken identity, a study by the European Parliament found. As part of a broader pledge to end torture, Obama has vowed to halt the practice of rendition. But whether Obama plans to abandon the offshore facilities where interrogations have taken place remains unclear. If he does, any detainees remaining there would probably need to be relocated–possibly to Guantánamo, where their legal status would be examined anew.

Eavesdropping

Obama may leave intact, at least at the outset, one of the most controversial elements of Bush’s war on terrorism: a secret snooping program that spies on some Americans without benefit of a court order. Shortly after 9/11, the National Security Agency began intercepting communications to and from the U.S. by suspected terrorists and confederates in their network. The White House alerted key members of Congress about the program, in part because the Administration was skipping the long-standing practice of obtaining judicial approval in advance for surveillance, as prescribed by a 1974 law. When the program became public in 2005, Justice Department officials struggled to structure it to adhere more closely to existing law, but how much it was actually changed remains unclear. Not all civil libertarians were satisfied, and Obama vowed during the campaign to end warrantless wiretapping. But he is unlikely to halt the program outright; instead, he will probably ask a team of legal advisers to recommend a new approach.

Even after all these policies are modified or abandoned, Obama will face lingering questions about whether anyone should be punished for Bush-era excesses. The feds are now probing whether CIA officials knowingly destroyed tapes of illegal interrogations in 2005, and officials at Justice are looking into whether the department’s lawyers acted appropriately when they wrote legal opinions that approved waterboarding and other unconventional interrogation methods. A similar Justice Department review of attorney behavior regarding the domestic surveillance program is also under way.

Lawmakers from both parties have called for accountability in all these programs, but neither Obama nor top congressional Democrats have signaled much appetite for prosecuting Bush Administration figures once they are out of office. An incoming President will need every vote he can get on economic and energy matters, and is unlikely to spend political capital on a divisive effort to assess blame for the missteps of a previous Administration. But civil rights proponents say a full review may be the only way to ensure that such government abuses do not happen again. Vincent Warren, executive director of the Center for Constitutional Rights, says, “Criminal prosecution of some of the people involved does have a restorative aspect, and not just symbolically.” Obama will probably cooperate with congressional probes of Bush-era behavior. But he may find it trickier politically to go after officials who were, most likely, just following orders.

December 07, 2008

By George Will

WASHINGTON — Reactionary liberalism, the ideology of many Democrats, holds that inconvenient rights, such as secret ballots in unionization elections, should be repealed; that existing failures, such as GM, should be preserved; and, with special perversity, that repealed mistakes, such as the “fairness doctrine,” should be repeated. That Orwellian name was designed to disguise the doctrine’s use as the government’s instrument for preventing fair competition in the broadcasting of political commentary.

Because liberals have been even less successful in competing with conservatives on talk radio than Detroit has been in competing with its rivals, liberals are seeking intellectual protectionism in the form of regulations that suppress ideological rivals. If liberals advertise their illiberalism by reimposing the fairness doctrine, the Supreme Court might revisit its 1969 ruling that the fairness doctrine is constitutional. The court probably would dismay reactionary liberals by reversing that decision on the ground that the world has changed vastly, pertinently and for the better.

Until the Reagan administration extinguished it, the doctrine required broadcasters to devote reasonable time to fairly presenting all sides of any controversial issue discussed on the air. The government decided the meaning of the italicized words.

When government regulation of the content of broadcasts began in 1927, the supposed justification was the scarcity of radio spectrum. In 1928 and 1929, when Republicans ran Washington, a New York station owned by the Socialist Party was warned to show “due regard” for others’ opinions, and the government blocked the Chicago Federation of Labor’s attempted purchase of a station because all stations should serve “the general public.” In 1939, when Democrats ran Washington, the government conditioned renewal of one station’s license on that station’s promise to desist from anti-FDR editorials.

In 1969, when the Supreme Court declared the fairness doctrine constitutional, it probably did not know the Kennedy administration’s use of it, as one official described it: “Our massive strategy was to use the fairness doctrine to challenge and harass the right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.” Richard Nixon emulated this practice. In 1973, Supreme Court Justice William Douglas, a liberal, said the doctrine “has no place in our First Amendment regime” because it “enables administration after administration to toy with TV or radio.”

The court’s 1969 ruling relied heavily on the scarcity rationale. But Brian Anderson and Adam Thierer, in their book “A Manifesto for Media Freedom,” note that today there are about 14,000 radio stations, twice as many as in 1969, and 18.9 million subscribers to satellite radio, up 17 percent in 12 months, and 86 percent of households with either cable or satellite television receive an average of 102 of the 500 available channels. Because daily newspapers are much more scarce than are radio and television choices, should there be a fairness doctrine for The New York Times?

The 1969 court dismissed as “speculative” the possibility that the fairness doctrine would cause broadcasters to “eliminate coverage of controversial issues.” But the proper worry was that the doctrine would continue to stifle the flowering of controversy. A court that considers the doctrine today will note that whereas in 1980 there were fewer than 100 talk radio programs, today there are more than 1,500 news or talk radio stations.

Further subverting the “scarcity” rationale for government supervision of broadcast content, some liberals now say: The problem is not maldistribution of opinion and information, but too much of both. Until recently, liberals fretted that the media were homogenizing America into blandness. Now they say speech management by government is needed because of a different scarcity — the public’s attention, which supposedly is overloaded by today’s information cornucopia.

And these worrywarts say the proliferation of radio, cable, satellite broadcasting and Internet choices allows people to choose their own universe of commentary, which takes us far from the good old days when everyone had the communitarian delight of gathering around the cozy campfire of the NBC-ABC-CBS oligopoly. Being a liberal is exhausting when you must simultaneously argue for illiberal policies on the basis of dangerous scarcity and menacing abundance.

If reactionary liberals, unsatisfied with dominating the mainstream media, academia and Hollywood, were competitive on talk radio, they would be uninterested in reviving the fairness doctrine. Having so sullied liberalism’s name that they have taken to calling themselves progressives, liberals are now ruining the reputation of reactionaries, which really is unfair.

Program focuses on infrastructure, modernizing public buildings

Michael D. Shear
Washington Post
December 7, 2008

WASHINGTON – On the heels of more grim unemployment news, President-elect Barack Obama on Saturday offered the first glimpse of what would be the largest public works program since President Dwight D. Eisenhower created the federal interstate system in the 1950s.

Obama said the massive government spending program he proposes to lift the country out of economic recession will include a renewed effort to make public buildings energy-efficient, rebuild the nation’s highways, renovate aging schools and install computers in classrooms, extend high-speed Internet to underserved areas and modernize hospitals by giving them access to electronic medical records.

“We need to act with the urgency this moment demands to save or create at least 2 1/2 million jobs so that the nearly 2 million Americans who’ve lost them know that they have a future,” Obama said in his weekly address, broadcast on the radio and the Internet.

Obama offered few details and no cost estimate for the investment in public infrastructure. But it is intended to be part of a broader effort to stimulate economic activity that will also include tax cuts for middle-class Americans and direct aid to state governments to forestall layoffs as programs shrink.

House Speaker Nancy Pelosi, D-Calif., has called for spending $400 billion to $500 billion on the overall package. Some Senate Democrats and other economists have suggested spending even more – potentially $1 trillion – in the hope of jolting the economy into shape more quickly.

On Friday, the government reported that 533,000 jobs were eliminated in November, the largest one-month drop since 1974, raising unemployment to 6.7 percent. And last week, the National Bureau of Economic Research officially declared that the country has been in a recession since last December.

Republicans in the House oppose Obama’s plan, saying they favor a series of tax cuts that they say would put money in people’s pockets and encourage businesses to expand domestically.

Democrats said that even if a recovery act quickly passed the House early next year, it could take longer in the Senate, where fiscally conservative Republicans have expressed concern about adding to the soaring deficit with a massive new round of government spending. Even with at least 58 Democratic votes in the new Senate, Republicans could easily hold up a final vote, they said.

In his address, Obama offered the first outline of how he wants to direct the public works spending.

The largest share would go to roads and bridges and could be used to accelerate long-delayed repairs and expansions. Responding to concerns that new transportation money might be caught up in red tape at the state level, Obama said states must quickly invest in road and bridge construction and repair or lose the federal dollars.

Obama would also direct a “massive effort” to make federal buildings energy-efficient by replacing aging heating systems and installing efficient light bulbs. Obama said the effort to “green” the federal government would save taxpayers billions.

Much of the public works program would be aimed at improving technology. The government would pay for new computers in schools, new medical technology in hospitals and doctors’ offices, and a nationwide push to bring broadband to parts of the country that cannot yet access the Internet at high speeds.