Obama Defends Domestic Surveillance

Caleb Hamman
chamman@butler.edu

As described in chapter five of The End of the American Century, undemocratic trends in the U.S. political system are having immense effect in furthering American decline.

The Bush II administration deserves substantial culpability. Decider & Co. scissored the democratic fabric as they exacerbated economic inequality, infringed upon the rights of American citizens, and ruled by fiat decrees issued from a hierarchical decision-making structure.

Conversely, the Obama administration has brought about some welcome developments. A grassroots presidential campaign, an end to torture, and a more transparent governing style are some recent democratizing measures that bode well for the U.S. political system.

Still, other actions have been less than reassuring. Among the most ominous has been Obama’s refusal to depart from the Bush status quo on the issue of domestic surveillance.

Since January, the Obama Justice Department (DOJ) has taken action to ensure the legality of Bush’s domestic spying policies will go unquestioned, the details of the program will remain unknown, and surveillance practices will remain institutionalized for possible use by future administrations.

Supporting evidence is provided in abundance by the DOJ’s record in the ongoing Al-Haramain court case.

Wendell Belew and Asim Ghafoor, former lawyers for the now defunct Al-Haramain Islamic Foundation, sued the Bush administration after they accidentally received documentation from the Treasury Department revealing that they had been subject to warrantless surveillance in 2004.

To review, Bush’s domestic surveillance program, operating without the use of warrants, was in direct violation of the Foreign Intelligence Surveillance Act of 1978 (FISA) which permitted domestic surveillance only in the case of a court order. Bush’s spying policies were unquestionably illegal. His own DOJ refused to certify them and his attorney general, John Ashcroft, threatened to resign if they were continued (1).

To date, Bush’s spying program has withstood attacks against its legality by employing a clever bit of sophistry. The defenders of surveillance essentially argue:

1. No one can bring suit against the program who does not have standing.
2. No one can claim they have standing (because no one knows they have been spied on).
3. No one can be told they were spied on because the information is a “state secret.”

Because of its unlooked for gift from the Treasury Department, the Al-Haramain case appeared to be the first with substantial promise to penetrate this circular reasoning—at least until the Bush administration declared the document a “state secret” and Al-Haramain was forced to return it to the Treasury Department by court order (2).

For three years, the Bush administration continued to assert the state secrets privilege and thus prevent Al-Haramain from proving the standing necessary to question the legality of the surveillance program.

Recently things began to take a different turn. Last July, U.S. District Judge Vaughn Walker ruled that the state secrets privilege didn’t apply to the Al-Haramain case. Then, on Jan. 5, Walker ruled that, with some minor qualifications, Al-Haramain’s lawyers should be given access to the controversial document in order to establish standing.

Enter the Obama administration. Writing last week in Salon, Al-Haramain’s lawyer Jon Eisenberg described how Obama’s election had given the plaintiffs “hope” that they would see some “change we can believe in” in “the Justice Department’s handling of the case under Attorney General Eric Holder” (3).

Perhaps Al-Haramain’s lawyers had taken heart from Obama’s campaign Web site. Herein, “The Plan to Change Washington” describes one aspect of “The Problem” as being “Secrecy Dominates Government Actions” (4).

Specifically, “The Bush administration has ignored public disclosure rules and has invoked a tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court.”

Despite its rhetoric, Eisenberg testifies that Obama’s Justice Department “has continued to assert the state secrets privilege in the Al-Haramain case, even though Judge Walker ruled last July that the privilege does not apply.”

Also writing in Salon, constitutional and civil rights lawyer Glen Greenwald describes how “the Obama DOJ” is “not merely trying desperately to keep the Bush administration’s spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants” (5).

Greenwald details how “Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding—emergency appeals, requests for stays, and every time they lose, threats of still further appeals.”

The process reached a climax late last month. On Feb. 27th, the Ninth Circuit Court of Appeals rejected an emergency request by Obama’s DOJ to halt further proceedings before Judge Walker. This ruling effectively ensured that Al-Haramain’s lawyers would have access to the top-secret document necessary to prove standing.

At this point, Obama’s lawyers took unprecedented action. According to Eisenberg, “they informed Judge Walker in a public court filing that if he intends to give us access to the secret filings in the case, the government will ‘withdraw that information from submission to the court’.”

As Eisenberg describes, this statement implies that “executive branch authorities (who? the FBI? the army?) will attempt to seize the documents from Judge Walker”—something that would be “a violation of the constitutional separation of powers, unprecedented in this nation’s history.”

From its actions in the Al-Haramain case, it seems quite clear that the Obama administration has chosen to defend the Bush status quo on domestic surveillance. Legal arguments aside, it’s a rather disturbing decision—one preventing the achievement of justice for past crimes and effectively guaranteeing that domestic surveillance practices will be available to future administrations.

It’s less than clear why the Obama administration has elected this position. It’s not as if they’ve merely invoked "state secrets" in order to protect a few pieces of sensitive information; rather, in exactly the same fashion as Bush, they’ve employed the privilege to have undesirable cases thrown out in their entirety, ensuring that the legality of domestic surveillance will never meet serious challenge.

At best, Obama’s surveillance policy is simply representative of a hesitancy to investigate past crimes. At worst, it’s an attempt to retain expanded, illegal powers for the executive branch and a tacit approval of establishing an above-the-law presidency effectively immune from judicial restraint.

Unfortunately, the context of past actions seems to rule out the least of all evils. Obama voted for the 2008 FISA amendments—bestowing legitimacy on surveillance practices and described by Yale Law School Professor Jack Balkin as “byzantine” and giving “new powers” to the presidency that are “either sketchy or opaque” and “will have to be worked out” by “the executive branch” (6).

Welcome Caleb Hamman to the team

Caleb Hamman, a former student of mine, will be joining this blog as a guest contributor. Caleb is double-majoring in Political Science and Philosophy at Butler University, and is the opinion editor and columnist for The Butler Collegian. HIs first blog will appear here shortly.

Is the Global Economy a Ponzi Scheme?

In his Sunday New York Times column, Thomas Friedman quotes a climate expert, Joe Romm, who nicely captures a problem that I discuss in my book, and in several blogs posted here(especially "The US Economy Will Shrink A Lot, and It Should.").

"We created a way of raising standards of living that we can't possibly pass on to our children. . .We have been getting rich by depleting all of our natural stocks--water, hydrocarbons, forests, rivers, fish and arable land--and not by generating renewable flows."

This led me to Joe Romm's blog, climateprogress.org, where he has a thoughtful and thought-provoking entry entitled "Is the Global Economy a Ponzi Scheme?" The essay, and that site, are worth a look, and I have added a link to it in my blogroll.

The End of the American Century Published in China

The End of the American Century will appear this month in China, published by the Shanghai Lexicographical Publishing House, and translated by Professor Ni Lexiong and Sun Yunfeng of the Shanghai University of Political Science and Law.

The US Economy Will Shrink (A Lot), and It Should

The U.S. economic stimulus plan passed by Congress aims to regenerate economic growth, spending and consumption. But it is almost certainly bound to fail, and not for the reasons given by partisans on both sides of the Congressional aisle. In spite of the stimulus, the economy will continue to contract. This is inevitable; it is necessary; and it is even desirable. The main task of the government should be protecting those who are displaced and impoverished during this contraction and retrenchment.

The U.S. economy must contract because it is way too large, in numerous respects. It is too large given the U.S. levels of production and exports. It is built largely on consumption and debt, not output. And it is too large for the rest of the world, even given the size and wealth of the country.

The U.S. economy is big—about 28% of global GDP. But the U.S. accounts for only about 8% of global exports; 16% of manufacturing value-added output, and 5% of the world’s population.

The main contributor to the outsized US GDP is consumption, where the U.S. is indeed the world’s leader. Consumption accounts for about 72% of US GDP, which is a record for any large economy in modern history. As we are now learning, this consumption has been built on a mountain of consumer and household debt, which now totals some $13 trillion—approximately the size of the entire U.S. economy. This is unsustainable.

Furthermore, much of U.S. debt is owed to other countries. About half of the federal debt and a quarter of corporate bond debt is held by foreigners. As former Senator Hillary Clinton pointed out in 2007, "16% of our entire economy is being loaned to us by the Central Banks of other nations."

These huge levels of consumption are a drain on the planet, its resources and its people. The U.S. has only 1 in 20 of the globe’s people, but we consume a quarter of the world’s fossil fuels; 29% of “materials” (including minerals, metals and synthetics); 19% of forestry products; and 14% of its water. The U.S. is also the world’s biggest contributor to environmental pollution, greenhouse gas emissions (a quarter of the world’s total) and global warming. At 5% of the globe, we leave a huge carbon footprint.

In the 1970s Yale historian Paul Kennedy, writing in The Rise and Fall of the Great Powers, suggested that eventually the U.S. would have to decline to its “natural” share of the world’s wealth and power, which he estimated should be in the 16-18% range, rather than the 30-40% held by the U.S. at that time. This would indicate a cutting of the U.S. economy by half.. But so would many of the economic indicators I mention above. Consumption, debt, and borrowing all need to be reduced by about that amount, as should petroleum and energy use.

Given the hugely bloated size of the U.S. economy, and of U.S. consumption, and of consumer and government debt, it is hard to see how the economic stimulus package will make much of a dent in things. The economy is bound to decline, and needs to.

This contraction has already begun. The country’s GDP shrunk last quarter at an annualized rate of 3.8 %. If this continues, it will be the largest yearly decline in the US economy since 1946. But a much larger decline will be necessary to bring the economy back to a more natural, balanced and sustainable level. The contraction of GDP is likely to continue for several years, at the very least. This would be unprecedented for the postwar period, when only once (1974-75) did the economy contract two years in a row.

Such a decline could be on a scale of that of the 1930s. The main problem then, as now, will be the reduction in employment, and the consequent growth in poverty. It is hopeless throwing good money after bad in an effort to revive growth, consumption and debt. Instead, the federal and state governments should focus on alleviating the suffering that this contraction will entail, by increasing funds for unemployment compensation, Medicaid, welfare, job retraining and education.

Many people will suffer in this transition, and they should be helped. For most people, though, this economic retrenchment will simply mean belt-tightening. Our standard of living will decline, in ways most of us have not experienced before. But we are still a highly developed wealthy country, and will remain so. Once the U.S. economy has stabilized at a more natural size, it will grow again. And this time, it can happen in a way that is not so destructive of the planet, other peoples, and our souls.

Forthcoming Presentations on "The End of the American Century"

Over the next several weeks, I will be giving several public presentations related to themes of my book The End of the American Century.

March 4, Muncie "The Future of America's Power in the World" Co-presenting with Michael Kraig, Senior Fellow at the Stanley Foundation. The Annual Trivers Lecture, sponsored by the Ball State University Department of Political Science. Wednesday, March 4 at 4:00 p.m. in Bracken Library, Room 226.

March 11, Chicago Two presentations at Northeastern Illinois University (Chicago), as part of their conference on "The Past and Future(s) of Revolutions: A Global Exploration" (see program at this link).

Noon. Teaching a Master Class on "The Unraveling Revolution: The Collapse of U.S. Superpower." NEIU Auditorium.

7pm "Systemic Revolutions and the End of the American Century." Presentation on a panel on "New Forms of Revolution" with other presentations by Julie Mertus and Jonathan Schell. NEIU Auditorium.

March 18, Indianapolis. "The End of the American Century" as part of the Distinguished Speaker Series of the Indiana Council on World Affairs. 6:30pm, The Marten House Hotel, Indianapolis.

April 1, Indianapolis. "The U.S. and Rising Powers" Presentation as part of the "Great Decisions" series presented by the Mid-North Shepherd's Center. 11:00 a.m. at the North United Methodist Church, 3808 N. Meridian Street. More information at this link.

More Evidence That Taxes Must Go Up

David Leonhardt, the prescient and hard-headed New York Times economics columnist, states flatly that "your taxes are going up" in his column of Feb. 25. Leonhardt's data and arguments reinforce those I have made in The End of the American Century, in my Op-Ed for the Christian Science Monitor ("This is not the time to cut taxes"); and in other posts here.

Leonhardt argues that if we want the government services that we have come to expect and rely on (like national security, infrastructure, Medicare, education), we need more federal revenues, because at the moment "we are not paying nearly enough taxes to maintain those programs." He sees taxes going up soon, "and the increase will be permanent."



On the upside, Leonhardt argues, there is room for such an increase, and it will probably not hurt economic growth. As he points out, for a half century federal taxes have remained fairly constant relative to the size of the economy--at about 18% of GDP. "But the 18 percent era has to end soon."

In The End of the American Century, I show that US tax rates are low in global comparisons.

"Compared to other wealthy countries, the United States has among the lowest rates of both individual and corporate income taxes, and total tax revenues in the U.S. (as a percentage of GDP) are lower than those in most of the affluent democracies that are members of the OECD [see OECD data here]. Thus, not only is the U.S. spending and consuming more than most countries, but it is not paying for the relatively few benefits that the government provides. This is the crux of the problem of the deficit and the debt."

Leonhardt argues (as I do in my CSM Op-Ed), the "despite all the scary stories you've heard, the evidence that higher taxes necessarily cripple an economy is somewhere between thin and nonexistent." He points out that the fastest postwar economic growth occurred in the 1950s and 1960s, "when the top marginal tax rate was a now-unthinkable 90 percent."

He also points out that it will not be sufficient to simply raise taxes on the very wealthy, as President Obama has proposed. The incomes and wealth of that group have soared in the last decade, as their federal tax rates have declined. So their higher tax rates should be restored.

But, as Leonhardt says, "the problem can't be solved just by taxing the rich." That top 1% pays only about one quarter of federal taxes. So the tax increases will have to spread more widely.

This will be a very difficult task politically. No politician wants to raise taxes. But not to do so will simply pass the problem onto our children, and burden them with an even bigger mountain of debt. We need to start paying for what we get. And especially now, as we launch huge new spending programs for health care, education, infrastructure and banks, we need to shell out for what we are getting.