Another Brutal Year for Liberty

Befitting an
administration that has spent eight years obliterating America's core
political values, its final year in power -- 2008 -- was yet another
grim one for civil liberties and constitutional protections. Unlike the
early years of the administration, when liberty-abridging policies were
conceived of in secret and unilaterally implemented by the executive
branch, many of the erosions of 2008 were the dirty work of the U.S.
Congress, fueled by the passive fear or active complicity of the
Democratic Party that controlled it. The one silver lining is that the
last 12 months have been brightly clarifying: It is clearer than ever
what the Obama administration can and must do in order to arrest and
reverse the decade-long war on the Constitution waged by our own
government.

The most intensely fought civil liberties battle of 2008
-- the one waged over FISA and telecom immunity -- ended the way most
similar battles of the last eight years have: with total defeat for
civil libertarians. Even before Democrats were handed control of
Congress at the beginning of 2007, the Bush administration had been demanding legislation
to legalize its illegal warrantless NSA eavesdropping program and to
retroactively immunize the telecom industry for its participation in
those programs. Yet even with Bill Frist and Denny Hastert in control
of the Congress, the administration couldn't get its way.

Not even the most cynical political observer would have
believed that it was the ascension of Harry Reid and Nancy Pelosi that
would be the necessary catalyst for satisfying Bush's most audacious
demands, concerning his most brazenly illegal actions. If anything,
hopes were high that Democratic control of Congress would entail a
legislative halt to warrantless eavesdropping or, at the very least,
some meaningful investigation and disclosure -- what we once charmingly
called "oversight" -- regarding what Bush's domestic spying had really
entailed. After all, the NSA program was the purified embodiment of the
most radical attributes of a radical regime -- pure lawlessness,
absolute secrecy, a Stasi-like fixation on domestic surveillance. It
was widely assumed, even among embittered cynics, that the new
Democratic leadership in Congress would not use their newfound control
to protect and endorse these abuses.

Yet in July 2008, there stood Pelosi and Reid, leading their caucuses as they stamped their imprimatur of approval on Bush's spying programs. The so-called FISA Amendments Act of 2008 passed with virtually unanimous GOP and substantial Democratic support, including the entire top level of the House Democratic leadership.
It legalized vast new categories of warrantless eavesdropping and
endowed telecoms with full immunity for prior surveillance lawbreaking.
Most important, it ensured a permanent and harmless end to what
appeared to be the devastating scandal that exploded in 2005 when the
New York Times revealed to the country that the Bush administration was
spying on Americans illegally, without warrants of any kind.

With passage of the Act, Democrats delivered to the Bush
administration everything it wanted -- and more. GOP Sen. Kit Bond
actually taunted the Democrats in the Times
for giving away the store: "I think the White House got a better deal
than they even had hoped to get." Making matters much worse, by
delivering this massive gift to the White House, the House undid one of
its very few good deeds since taking over in 2006: its galvanizing
February 2008 refusal to succumb to Bush's rank fear-mongering by
allowing "The Protect America Act" to expire instead of following the
Senate's lead in making it permanent.

Adding the final insult to this constitutional injury, Barack Obama infamously violated his emphatic pledge,
made during the Democratic primary, to filibuster any bill containing
telecom immunity. With the Democratic nomination fully secured, Obama
blithely tossed that commitment aside, instead joining his party's
leadership in voting for cloture on the bill -- the opposite of a
filibuster -- and then in favor of the bill itself. The photographs of the celebratory, bipartisan signing ceremony
that followed at the White House -- where an understandably jubilant
George Bush and Dick Cheney were joined by a grinning Jay Rockefeller,
Jane Harman and Steny Hoyer -- was the vivid, wretched symbol of what,
in 2008, became the fully bipartisan assault on America's basic
constitutional guarantees and form of government.

The FISA fight was the destructive template that drove
virtually every other civil liberties battle of the last year. Time and
again, Democrats failed to deliver on a single promise. They failed to overcome a GOP filibuster in the Senate
to restore habeas corpus, which had been partially abolished in 2006 as
a result of the Military Commissions Act that passed with substantial
Democratic support and wholesale Democratic passivity. Notably, while
Senate Democrats, when in the minority, never even considered a
filibuster to block the Military Commissions Act, it was simply assumed
that the GOP, when it was in the minority, would filibuster in order to
prevent passage of the Habeas Restoration Act. And filibuster they did.

A similar scenario played out with the attempt in February
to redress America's torture crisis by enacting an amendment to the
Defense Authorization Act compelling all government agencies, including
the CIA, to comply with the Army Field Manual when interrogating
detainees. The most immediate effect of such a law would have been to
impose an absolute ban on the use of waterboarding, along with any
other coercive tactics -- torture techniques -- which the Manual does
not explicitly authorize.

Knowing that the president would veto the bill,
the GOP allowed a floor vote on the Army Field Manual amendment.
Signaling what would be his year-long, soul-selling captivity to the
far right of his party, John McCain -- despite years of parading around
as a righteous opponent of torture -- voted against the torture ban. The bill passed both houses largely along party lines, President Bush vetoed it as promised, and the House then failed to override the veto.
The path taken was slightly different, but the outcome was the same:
total failure in reining in Bush's abuses. Indeed, by the end of 2008,
civil libertarians could point to many defeats suffered in the
Democratic-controlled Congress, but not a single victory.

The fate of civil liberties in the judiciary was much more
mixed, punctuated with several significant victories. Undoubtedly the
most important win was the Supreme Court's June decision in the Boumediene case, which struck down as unconstitutional one of the worst constitutional assaults of the Bush era:
Section 7 of the Military Commissions Act, which had purported to
abolish habeas corpus for Guantanamo detainees and prohibited them from
challenging their detention in a federal court.

The Court ruled, by a precarious 5-4 margin, that
Guantanamo detainees could not constitutionally be denied the right to
have their detentions reviewed by an American federal court. That
seminal ruling paid quick dividends for some of the detainees. Last
month, a Bush 43 federal judge -- the same jurist who had originally
upheld the Act's abolition of habeas review for Guantanamo detainees
and was ultimately reversed by the Boumediene court --
conducted a habeas hearing for six Algerian-Bosnian detainees
imprisoned without charges at Guantanamo for the last six years.

The judge concluded that the Bush administration had no
credible evidence to justify the detention of five out of the six
detainees and thus ordered them released immediately. Four of the five are now back in Bosnia, while the fifth awaits release. Without the Boumediene
ruling, the truly heinous provisions of the Military Commissions Act
would still be operative and would continue to empower the government
to hold those detainees -- along with dozens if not hundreds of others
-- indefinitely and without charges. Boumediene is one of the few civil liberties bright spots of this decade.

The Bush administration, also earlier this year, suffered
another judicial defeat at the hands of a very conservative, Bush
43-appointed federal judge, when that judge emphatically rejected the administration's claim
that Bush aides Harriet Miers (former White House counsel) and Josh
Bolten (former White House chief of staff) are entitled to absolute
immunity from Congressional subpoenas. That dispute, which arose from
the House Judiciary Committee's efforts to investigate the notorious
firing of nine U.S. attorneys, dispensed with one of the
administration's most radical tools -- a claim of absolute,
unconstitutional executive privilege -- for shielding itself from
accountability.

One of the most potentially damaging judicial developments of the year was a horrendous ruling issued in July by the conservative Fourth Circuit Court of Appeals in the case of Ali Saleh Kahlah al-Marri. The al-Marri
court actually upheld the president's claimed authority to detain legal
residents and even U.S. citizens in a military prison as "enemy
combatants," rather than charge them in a civilian court with a crime.
But the damage done by that ruling was mitigated substantially when the
U.S. Supreme Court announced just two weeks ago that it has agreed to review the al-Marri ruling, and civil libertarians are cautiously optimistic that the Court will likely reverse it.

For the last seven years, Democrats have repeatedly cited
GOP political dominance to excuse their wholesale failures to limit,
let alone reverse, the devastating war waged by the Bush administration
on America's core liberties and form of government. With a new
Democratic president and large majorities in both Congressional houses,
those excuses will no longer be so expedient. As dark and depressing as
these last seven years have been for civil libertarians, culminating in
an almost entirely grim 2008, there is no question that the Obama
administration and the Democrats generally now possess the power to reverse these abuses and restore our national political values.
But as the events of the last 12 months conclusively demonstrate, there
are substantial questions as to whether they have the will to do so.