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Obama on Civil Liberties: Year One

Plenty of Hope, But Not Much Audacity to Go Around


Barack Obama
Photo: Pool / Getty Images.
Updated January 21, 2010
Criticism of President Obama's record on civil liberties tends to focus on legislation (which is more the business of Congress) and specific Supreme Court rulings (which are independent of the executive branch), but there are still areas where he has the power to do good work and has chosen, for whatever reason, not to do so.

Many of these areas are highlighted in a new ACLU report, America Unrestored, which is well worth reading.

I'm also going to discuss some of them below, but first let's acknowledge the obvious: Barack Obama is, in almost every respect, an improvement over George W. Bush. His appointment of Justice Sonia Sotomayor to replace Justice David Souter seems, at this early stage, to be inspired. His executive order banning enforcement of federal anti-marijuana laws against legal medical marijuana dispensaries seems to have at least reduced the incidence of these arrests. He has banned discrimination on the basis of gender identity in federal employment, ended the Global Gag Rule, ordered the closure of CIA secret prisons, banned torture (as much as any past president has, at any rate), and made an open-ended commitment to closing the detention facility at Guantanamo Bay. His first year in office has not been a waste of time, and to riff on a quote from Theodore Parker, the moral arc of the Obama administration, though long, bends towards civil liberties.

But he has unnecessarily squandered hundreds of opportunities to protect human rights and civil liberties through means that would not necessitate any congressional or judicial impetus. As he contemplates his low approval rating, I hope that he will remember, at some point, that he was elected as a candidate who represented the "audacity of hope" and the "fierce urgency of now."

Every item on the list below is within Obama's power to address, through executive order or by other executive-branch means--no congressional approval required. His failure to do these things doesn't mean that he's a conservative--but I would argue that it does mean that he's a moderate. Anyone who expected bold, radical change from the Obama administration on any of these civil liberties issues has probably been disappointed.

War on Terror:
  • He has not ended the practice of extraordinary rendition.
  • He has done nothing to end the Bush warrantless surveillance program.
  • He has done nothing to officially end infiltration and surveillance of activist groups.
  • He has done nothing to limit the expansion, or review the content, of federal antiterrorism watchlists, including pre-flight watchlists that routinely turn up false matches.
War on Drugs:
  • He has not ordered a revision of DOJ cocaine prosecution guidelines to treat crack arrests as equivalent to powdered cocaine arrests, which would have at least temporary eliminated the crack disparity.
  • He has not entirely ended raids on state-legal medical marijuana dispensaries.
  • He has not defined marijuana possession arrests as a "lowest law enforcement priority," or otherwise deemphasized them.
First Amendment:
  • Has not ended the Bush-era policy of establishing "free speech zones" for protesters.
  • Has not ended the White House faith-based initiatives program.
  • Has not reduced the level of censorship for overseas military personnel.
Immigrants' Rights:
  • Has not declared a moratorium on raids.
  • Has not slowed expanded use of the E-Verify system among federal contractors.
  • Has not ended deportations to countries that practice torture.
  • Has not ended use of the draconian "expedited removal" practice.
Unitary Executive Powers:
  • Has not narrowed or overruled use of presidential signing statements.
Gender and LGBT Rights:
  • Has not expanded antidiscrimination policies vis-a-vís federal contractors to include discrimination on the basis of sexual orientation and/or gender identity.
  • Has not revoked the Bush administration's public school gender-segregation policies.
  • Has not ordered that emergency contraception be provided as standard on military bases, or that it be recommended for use at base health care facilities in cases of rape.
  • Has not issued a policy banning the shackling of pregnant federal prisoners.
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