Civil Liberties in Obama’s America
12. May, 2010
by Anthony Gregory, Campaign for Liberty



by Anthony Gregory, Campaign for Liberty

The following is based on a talk delivered at the Free State Project’s Liberty Forum in Nashua, New Hampshire, Saturday, March 20, 2010.

In the United States, civil liberties are seen as the province of the left. The ACLU, the Bar Association, the Democratic Party, people who err in favor of procedural protections for criminals and even terrorists—this is what tends to come to mind to conservatives who condemn civil liberties as a leftist interest, and to liberals who celebrate it as a great anchor of their political philosophy.

But what happens when the left-liberals are in charge of the executive branch, its police, its justice department, prosecutors and military courts? Predictably, conservatives fear the government will be soft on foreign and domestic villains. Liberals hold out hope that due process will be restored.

Libertarians, too, will often adopt this general lens through which to see political reality. Just as many progressive writers discussed the coming of Obama as a new dawn for the Bill of Rights—or, at least, the amendments they openly favor—many libertarians hoped that the Bush era of warrantless wiretapping, indefinite detention, torture and police statism would recede with the electoral victory of the Democrats.

But here we see the problem. For if the left are the most institutionally important guardians of civil liberties, then the ascent to power of one of their own will often mean a quieting of dissent. Left-liberals become caught up with economic policy, become corrupted, or simply tire of finding more reasons for their own partisan figurehead to be criticized, and look the other way. Just as Republican administrations can often implement domestic interventions with a freer hand—look at Bush’s effortless Medicare expansion compared to how long it has taken for Obama to move on health care—Democrats can expect a less hostile climate in which to build up executive power to the detriment of civil liberty. And indeed, even if they have good intentions, they run against political pressure from the opposition accusing them of being soft with the police power. A left-liberal in office is the perfect storm for the destruction of our privacy and the rule of law. Just remember what Clinton did at Waco, or the erosion of liberty after the Oklahoma City Bombing, and the truth of this was confirmed long before January of last year when Obama took the throne.

Consider for a moment the very meaning of civil liberties, and we come across another problem. In contrast to so-called civil rights, civil liberties concern the protection of our negative rights—our rights not to be deprived of life, liberty and property without due process. But the problem here is that even this admirable set of values is tainted by a statist tinge. Civil liberties are recognized, if not granted by the state. They often involve judicial powers like the power of a judge to issue writs of habeas corpus, the power to subpoena evidence, the power to force people to testify. Even those in the legal profession dominated by the political left are thus motivated not just by their interest in our personal freedom as individuals, but in the well-workings of the state apparatus. There is a real libertarian reason to want courts to be able to throw out evidence and issue writs of habeas corpus. But there is also a sense in which such due process protections elevate the institutional nature of the government and can be seen as machinations of the government itself. A leftist attachment to civil liberties is thus compatible with a belief in a well-working, equitable managerial state.

Yet, given the government is not going away any time soon, we can all celebrate procedural due process, strict requirements for warrants, the exclusionary rule and the like. But the reason we libertarians defend civil liberties—because we don’t trust the state by its very nature—is at least subtly different from the left-liberal conception, whereby they want the state to be as trustworthy as possible. To the left-liberal, civil liberties are reasons to celebrate the government we live under. For us, it is simply a reason to fear what even the most moderate of us consider an evil, even if it is necessary.

Of course, civil liberties can have a broader definition to include purely negative rights—such as the right to free speech on your own property, or the right not to be searched randomly while driving down the road. And of course all who love freedom must be stark champions in this broad sense of civil liberties as they relate simply to individual personal liberty, and we must be opponents of the law-and-order, war-on-terror mentality under which we find ourselves.

Putting all this aside for a second, let us look at what this all means in the age of Obama. No matter how you slice it, no matter how we try to define our terms, Obama has so far proven himself to be a disaster for civil liberties in practically every respect, with a trajectory that I must say is more frightening than even what was experienced under Bush.

The first sign that this might be the case came before Obama was elected. During the presidential campaign season, his campaign promised that he would vote to filibuster any bill that gave amnesty to telecom companies that had cooperated with Bush’s illegal NSA warrantless wiretapping program.

Now, the debate even back then was framed in statist terms. The left-liberal objection to the NSA program was more centered on the evils of the companies that followed Bush’s orders. It was not a matter of outrage against the state itself, or the illegal program by itself. The companies that had, admittedly immorally, cooperated with Bush, perhaps out of legitimate fears of legal reprisal, were the focus of leftist animosity. Immunity for Bush and the military surveillance state? That’s a national security policy question. But immunity for the sinners in the private sector? The Democrats all opposed this loudly.

But the mainstream media and the mainstream Democratic left were at least pretty critical of this gross violation of the Fourth Amendment and the use of the military to spy on Americans. When the story of the NSA spying broke in December 2005, it was a matter of some controversy. It typified the excessive war on terror policies of Bush and gave the Democrats a chance to seem less egregious on an important component of a free society.

But then Obama voted to legalize the program, to give immunity to the government and its connected telecoms. He voted for cloture—against filibuster. Even Hillary Clinton voted the right way. But Democratic nominee Obama had thrown his lot in with presidential dictatorship.

And now this issue is not even being debated. We have a Bushian surveillance state approved by both political parties. It is a bipartisan feature of leviathan, much like Social Security or the war on drugs.

This of course is the main problem, from a civil liberties standpoint, of having the Democrats in power. The police state grows, oftentimes faster, but with less vocal resistance among grassroots and centrist activists on the entire left side of the spectrum.

But nowhere is the betrayal more complete or horrifying than on detention policy.

Senator Obama voted against the Military Commissions Act of 2006, which stripped the federal judiciary over habeas corpus review power over aliens detained abroad. Obama gave a speech that September on the Senate floor pleading his colleagues to amend the bill and restore habeas corpus. He criticized the Detainee Treatment Act and lamented the procedural inadequacy of the Combatant Status Review Tribunals. He pointed out the irony of the multi-tiered judicial processes used to process so-called enemy combatants:

Now, the vast majority of the folks in Guantanamo, I suspect, are there for a reason. There are a lot of dangerous people. Particularly dangerous are people like Khalid Shaikh Mohammed. Ironically, those are the guys who are going to get real military procedures because they are going to be charged by the Government. But detainees who have not committed war crimes—or where the Government’s case is not strong—may not have any recourse whatsoever.

He spoke for all civil libertarians in bringing the issue home:

I do not want to hear that this is a new world and we face a new kind of enemy. I know that. I know that every time I think about my two little girls and worry for their safety—when I wonder if I really can tuck them in at night and know that they are safe from harm. . . . .

But as a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

He pointed out that such horrors were actually taking place, that innocent people had been victims of extraordinary renditioning, tortured by foreign regimes under U.S. prodding, and went on the make the radical point that

Under [the military commissions act], people who may have been simply at the wrong place at the wrong time—and there may be just a few—will never get a chance to appeal their detention. So, essentially, the weaker the Government’s case is against you, the fewer rights you have.

He did give himself some wiggle room, however, suggesting that perhaps the government “set up a system in which a military tribunal is sufficient to make a determination as to whether someone is an enemy combatant and would not require the sort of traditional habeas corpus that is called for as a consequence of this amendment, where the court’s role is simply to see whether proper procedures were met.â€