BROOKE GLADSTONE: On July 29th, the American Civil Liberties Union issued a review of the Obama administration covering its 18-month record on national security, civil liberties and human rights. It says that despite some important shifts away from the policies of the Bush years, many of the extreme practices since 9/11 may be permanently enshrined in law by this White House. The ACLU concludes that there is a real danger that, quote, “the Obama administration will preside over the creation of a “New Normal.” Ben Wizner is an attorney for the ACLU. Welcome to the show.

BEN WIZNER: Thanks for inviting me.

BROOKE GLADSTONE: Why don't you start with the good news from the ACLU’s point of view?

BEN WIZNER: Well, there is good news. On President Obama’s second full day in office, he signed a series of executive orders that really meant to sweep away some of the most egregious abuses of the Bush administration. He prohibited torture and required that all interrogations, even CIA interrogations, comply with the Army Field Manual. He ordered that Guantanamo be closed within a year. And although that hasn't happened, it was very important to put the power and prestige of the presidency behind that goal. He ordered that the CIA shut down its overseas prisons. These executive orders carried the force of law, and they were an important break both for the American people and for the entire world.

BROOKE GLADSTONE: So give me some examples of the New Normal that you’re worried about.

BEN WIZNER: Well, I think one example that may help explain the title of this report is the Guantanamo situation. The administration has admirably committed itself to closing this symbol for the abandonment of the rule of law. But look at what it has proposed: a prison in Thomson, Illinois that could hold these same detainees in military custody without charge or trial. And there’s a danger here that we could close the prison but enshrine the principle. The Obama administration has claimed the authority to use lethal force against people far from battlefields. We know that it has supported drone strikes in Yemen. The United States is not involved in an armed conflict in Yemen. And if the United States is able to declare that it can treat the whole world as a battlefield, we can't very well expect that other countries won't do the same thing.

BROOKE GLADSTONE: You also note that this New Normal extends to, uh, searches of laptops and cell phones for Americans returning from abroad, that that’s been used thousands of times in the past 20 months?

BEN WIZNER: The administration claims that, even when American citizens are returning to the country, that the Fourth Amendment does not protect their mobile devices, their laptops; uh, that those can be seized and searched without even any reasonable suspicion just because Americans made the decision to go abroad and to come back.

BROOKE GLADSTONE: Do you have any speculations as to why this administration has backtracked from its promises with regard to civil liberties and human rights?

BEN WIZNER: Well, I think we have to look at the political and media environment. There are certain unchallenged meta-narratives, you might call them, that really drive this debate. One of those narratives is that people who respond even to a failed terrorist attack by saying that our criminal laws are inadequate, by saying that our prisons can't safely hold terrorists, those people get the label “strong” and “tough” on terror. And people who say we should keep faith with our existing institutions, that the criminal law is certainly adequate for dealing with this new threat, those people are called “soft” or “weak” on terrorism. And that really doesn't get challenged. You know, the media has not done a good enough job contextualizing the threat of terror. [LAUGHS] How many Americans have actually died from terrorism on U.S. shores in the last ten years? And how does that compare to other threats?

BROOKE GLADSTONE: What’s the lesson here, that once a policy is introduced it will be with us forever? What are the stakes?

BEN WIZNER: The stakes are extremely high, particularly since President Obama has said that he doesn't want to put in place short-term policies that will be cast aside the next time one of his political opponents takes office. The problem is when those policies really look a lot like the policies of the Bush administration but are done with somewhat more respect for the rule of law. Yes, there is a real danger that we will have a new law of counterterrorism that replaces the traditional protections of criminal law and constitutional law, and that it will be with us for a very, very long time.

BROOKE GLADSTONE: Ben, thank you very much.

BEN WIZNER: Thank you so much for having me.

BROOKE GLADSTONE: Ben Wizner is an attorney for the American Civil Liberties Union.