President Obama's recent speech, presenting his vision of a comprehensive counter-terrorism strategy, included welcome rhetoric about the importance of constitutional principles, including due process and rights to dissent. It may represent the high watermark for civil liberties since his inauguration five years ago.
It is disappointing, given his thoughtful words, that he ignored so many inconvenient truths. From extrajudicial assassination to free speech and freedom of the press, from the need to address root causes of terrorism to partnership with American Muslims, the president promoted important principles but papered over reality.
The reaction by Republican senators was even worse. Sen. Saxby Chambliss (R-GA) foolishly suggested, "The president's speech today will be viewed by terrorists as a victory," and that doubling down on many of the same failed Bush-era policies from which President Obama finally signaled long overdue independence yesterday.
Due Process: Gitmo
The president forcefully spoke about the need to close Guantánamo Bay, and also lifted his moratorium on releasing Yemeni detainees whom the government has cleared for release, despite the clamor among conservative lawmakers who prefer to indefinitely detain anyone accused of terror without trial.
Yet the president's words reflected important principles that his own administration has routinely violated. Col. Morris D. Davis, the former chief military prosecutor at Guantánamo who resigned his position to challenge torture (and serves on the BORDC advisory board), agreed that, "It's great rhetoric. But now is the reality going to live up to the rhetoric?
The president criticized restrictions on resettling detainees cleared for release imposed by Congress early in his administration. But he has the authority to resettle those detainees through a separate process, if he were willing to certify the release of particular individuals -- which he has avoided in order to avoid the political risk.
Due Process: Drone Strikes
President Obama also pledged more congressional oversight of drone strikes, responding to sustained controversy and reiterating a promise from his State of the Union address in January that he has yet to fill.
Noting the 2014 drawdown of U.S. troops in Afghanistan, he also suggested the diminishing need for force protection. That, in turn, could lead to a reduction in "signature strikes," untethered attacks in which the CIA essentially kills at random based on nothing more than suspicious activity and inflames anti-U.S. sentiment. If nothing else, the president explained a preference to shift drone strikes from the unaccountable and secret CIA to the (also secret, though at least somewhat accountable) Pentagon.
Most importantly, the president acknowledged for the first time in public that civilian casualties -- which he predictably downplayed -- run the risk of creating new enemies.
On the one hand, he claimed that drone strikes are less lethal, and less prone to civilian casualties, than conventional warfare.
On the other hand, according to an independent study, only 5 percent of deaths from drone strikes were actually senior terror leaders, suggesting that what the press conveniently calls "targeted killings" are in fact essentially random. Signature strikes, in particular, reveal the rose tint in the president glasses: these are the antithesis of targeted killings, but rather knee-jerk assassinations based on mere suspicion. The CIA often doesn't even know who it kills, let alone whether they are actually involved in terrorism.
Perhaps most revealing were the president's comments about assassinating US citizens without trial. This particular subject sparked widespread controversy earlier this year, when Senator Rand Paul (R-KY) mounted a filibuster specifically to force the administration to resign the authority to kill Americans at home using drones.
Now, as then, the response is rhetorically welcome but substantively empty. Just as Attorney General Eric Holder's letter to Sen. Paul made promises that ultimately appear implausible in light of the actual facts, President Obama's assurances that drone strikes are closely targeted belies the competing fact that four US citizens have died in drone strikes, while only one was reportedly targeted. If the CIA has killed four times the number of US citizens than it has intended, how can we maintain the pretense that drone strikes avoid collateral casualties?
At root is a surprising willingness to redefine Due Process to exclude a right to judicial review. A canard -- that the executive branch can provide Due Process without judicial review -- pervades the drone program. But that view makes a mockery of more than 800 years of legal precedent establishing the need for judges to check and balance executive detention orders. For a constitutional law professor to advance so revolutionary claim should disturb any observer, regardless of political perspective.
The First Amendment: freedom of the press
President Obama also reiterated his recent call for a reporter shield law to enable the press to do its job without interference from prosecutors. This suggestion lends itself to criticism on the grounds of both hypocrisy and insufficiency.
A reporter shield law is important, but the president's speech ignored both his own administration's attacks on the press (which he needed no legislation to have curtailed), as well as its vindictive, predatory, and authoritarian crackdown on government whistleblowers (like Thomas Drake, or Bradley Manning, or John Kiriakou) who have resigned their careers to inform the public about government abuses.
The First Amendment: rights to dissent, assembly, and speech
President Obama also recognized that the ham-fisted security measures for which he and his predecessor are both known run the risk of "alter[ing] our country in troubling ways," before pledging a "proud commitment to civil liberties for all who call America home."
As a seeming illustration, he allowed an extended (and quite thoughtful) interruption from the audience, noting that the opportunity for a citizen to challenge her president reflects the vitality of liberty in America.
But his rhetorical respect for dissent stands in sharp contrast with the actual actions of federal agencies. Recent investigations have documented a vicious crackdown on dissent executed by the FBI, in partnership with police agencies around the country, to violently suppress the Occupy and peace movements.
At the same time, the IRS was discriminatorily auditing conservative groups, as well as transpartisan constitutionalist groups, including the organization I lead, the Bill of Rights Defense Committee.
Letting a heckler interrupt a speech is no substitute for respecting the public's rights to assembly, speech, and the press. Words are welcome, but they are far from enough.
Praising American Muslims while abusing us
President Obama's comments regarding American Muslims were also welcome, but again, ignored the harsh reality on the ground.
He reiterated that the U.S. is not at war with Islam, praised the support of American Muslims for U.S. counterterrorism operations, and indeed, play a key role in winning the battle for hearts and minds abroad. He even reminded listeners that terrorism in America has been instigated by anti-government Christians more often than by Muslims.
Yet during the president's tenure, the FBI has infiltrated mosques around the country, reportedly lied to communities -- and courts -- about it, recorded sexual encounters to enable blackmail, and bribed unsophisticated Muslims of all races into government-initiated plots in order to inflate both its own institutional reputation and the threat of domestic terrorism (while conspicuously ignoring real plots, like the Boston Marathon bombings).
Restoring First Amendment rights -- for the press, dissidents, and religious minorities -- will require wide-ranging changes at the FBI that few in Washington have discussed.
Perhaps most remarkably, the president explained that "force alone cannot make us safe," before noting the overwhelming and untenable costs of war, and the greater opportunity to achieve lasting security by winning not just battlefields, but also hearts & minds.
But the president -- like his predecessor -- has long ignored many of those opportunities. On the one hand, he explained how building roads, schools, and hospitals can undermine terrorist recruitment, in sharp contrast to the torture and drone strikes that encourage it.
But giving weapons to dictators, protecting American textile manufactures through discriminatory tariffs, enabling terror networks to fund themselves through the black market opportunities created by the failed war on drugs, and destabilizing global food markets by encouraging domestic agricultural overproduction through corporate subsidies, all play an enormous roles in enabling terrorism. Yet none of these subjects are even discussed in these terms in Washington.
If his rhetoric matched reality, the president's speech would have been world historical, repudiating a decade of lawlessness and restoring the best in America. And it was excellent, even if occasionally duplicitous. The question now is whether it was anything more than words, and whether the administration will convert the president's welcome rhetoric into long overdue action.
That, in turn, depends in part on whether Congress grows more assertive in asserting its checks and balances on executive power. Fortunately, we can each encourage that result.