Then-Senatorial candidate Obama in 2003 branded the Patriot Act "shoddy and dangerous" and pledged to dump it. He made the pledge in response to a candidate's survey by the National Organization for Women. Obama reneged on the pledge. But he did work to shave off some of the more blatantly outrageous constitutional abuses in the Act by imposing some civil liberties protections in the gathering and use of intelligence, on the use of torture in interrogations, and requiring at least some semblance of due process in court proceedings. But that paled in significance when Obama in a letter and with little fanfare and comment routinely let stand most of the still noxious provisions in the Act.
Business and citizens groups can still have their records examined by the government with minimal checks on how the information can be used and more particularly used against. Individuals often based on flimsiest of evidence can still be targeted for monitoring and surveillance if suspected of being a potential terrorist. Organizations and individuals can still be slapped with so-called roving wiretaps (taps that can be placed on an individual or group anywhere, anytime) again based on the flimsiest evidence or suspicion.
The other provisions in the Act that are just as legally questionable and constitutionally suspect are still firmly in place. Obama has given no hint that he'll change them.
The best known and most controversial is the executive order that grants wide latitude loosely defining what and who is a "terrorist combatant," where and how long that individual can be held (indefinitely) and how they should be legally disposed of (none of the standard constitutional protections).
The order gives the green light to interrogators to dodge the safeguards spelled out in the Geneva Convention against illegal and inhumane treatment of prisoners. Another order authorizes a block on the sale and transfer of property of any individual deemed a threat to the stabilization efforts in Iraq. This means that anyone who speaks out against the Iraq War technically could be branded a security threat and have their property seized.
The Act leaves it still open to individual interpretation of who is a terrorist (suspect) and worse, who makes that determination. The courts for sure don't make that determination. The core of the Bush terrorism war is firmly embedded in the executive orders that permit suspects to be held without trial, gives the military the right to determine what interrogation tactics can be used and when, reinforces the paranoid secrecy that encases the military's dealing with terror suspects. The executive orders were clearly designed to keep the victims from having their day in court, and keeping the courts from giving it to them. Obama has not changed that policy. He has not dismantled Bush's patently illegal domestic surveillance policies.
Obama justifies keeping nearly all of Bush's terror war provisions in place with the standard rationale that the government must have all the weapons needed to deal with the threat of terrorism, even legally and constitutionally dubious weapons. That, of course, was the Bush and Cheney stock line. The one small difference between them and Obama is that Obama has sought to put a softer casing around those illicit weapons. That's no consolation for those who took candidate Obama and later Senator Obama at his word that he'd scrap or at least radically overhaul the Act.
Earl Ofari Hutchinson is an author and political analyst. His forthcoming book, How Obama Governed: The Year of Crisis and Challenge (Middle Passage Press) will be released in January, 2010.