The following is based on a talk delivered at the Free State Projects 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 terroriststhis 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 Rightsor, at least, the amendments they openly favormany 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 handlook at Bushs effortless Medicare expansion compared to how long it has taken for Obama to move on health careDemocrats 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 rightsour 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 libertiesbecause we dont trust the state by its very natureis 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 rightssuch 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 Bushs 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 Bushs 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? Thats 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 clotureagainst 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 crimesor where the Governments case is not strongmay 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 safetywhen 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 timeand there may be just a fewwill never get a chance to appeal their detention. So, essentially, the weaker the Governments 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 courts role is simply to see whether proper procedures were met.
And this is one problem, of course, with left-liberal civil libertarianism. It is, ultimately, in love with the state and believes the state can be fair. Indeed, the Supreme Court decisions regarding detention policy during the Bush years often amounted to a denunciation that Bush was not following the law, but perhaps if he cobbled together a new substitute or alternative system, that would be good enough for constitutional government work. Then, as the conservative presidential supremacists on the court validly pointed out, Bush would tend to comply with these demands, creating new standards, which would again be struck down as insufficient.
However, the thrust of Obamas critique of Bush detention policy was overall mostly spot on. Obama appealed to habeas corpus many times in public, casting his lot with these principles that were part of the Anglo-American legal system for over 700 years. The great traditions of our legal system and our way of life were at stake, he boldly said. He repeatedly said we must close down Guantanamo, and he would do so. He cheered on the Boumediene v. Bush decision in 2008 that overturned the military commissions acts worst elements and extended habeas to Guantanamo. He pointed out that the commissions were not even yielding many convictions, and consistently decried the legal black hole of having a system unchecked by habeas corpus, prisoner of war protections or the Geneva Convention. Upon election, Obama kept Robert Gates on as secretary of defense, which was not encouraging generally, but Gates had been a proponent of closing Guantanamo at least as he was vocal that it would probably happen quickly with Obamas presidency.
But then Obama took the White House. The left cheered, including the civil libertarians. Almost everyone expected we would reverse the course toward totalitarianism in the war on terror and return back to a system at least resembling the rule of law. In his first week, Obama signed a few executive orders regarding black sites and Guantanamo and torture, most of which was symbolic, but at least it was a start.
After week one, however, Obama reverted to Bush detention policy in virtually every way. One of the first major disgraces concerned detainees at Bagram, the prison camp in Afghanistan, where Bush began shipping more detainees after Guantanamo was no longer his lawless playground, and where Obama has increased funding and the prison population. Four men sued for habeas relief. Justice John Bates, a federal judge appointed by Bush found that habeas should apply, in limited capacity, to Bagram, given that the Supreme Court ruled that it extended to Guantanamo. Obamas administration appealed this ruling, using Bushian reasoning down the line.
Bagram is even worse than Guantanamo, where at least the CRST process existed, and the military commissions have freed hundreds of people. Bagram is simply a dungeon beyond the law, and Obama has basked in it with only a little criticism from the left.
As for Guantanamo, Obama had promised to close it by this January. It is not closed and current plans indicate it will be closed, perhaps around the end of Obamas first term. There is talk of bringing Gitmo to the mid-west, which raises other concerns of setting the precedent that you dont need to go to Cuba to find an American legal black hole. A cry for justice in the spirit of Yes We Can has morphed into a totalitarian-style five-year plan. And the abuses there have only gotten worse.
Obama did decide to try Kahlah al-Marri in civil trial, rather than treat him indefinitely as an enemy combatant, but this could be seen in the same light as the Bush administrations decision to eventually charge and try José Padilla. As the executive made bold assertions of power over these domestic enemy combatants, the court system threatened to repudiate the executive prerogative. To avoid the embarrassment, the administrations decided to opt for a kangaroo court under the traditional U.S. civil law system rather than under the military commissions system.
This speaks to another important point. Although the Democrats have been less repulsive than Republicans in the area of military commissions, they act as though civil trials would be fair. When they announced the civil trial of Khalid-Sheikh Muhammed, civil libertarians suddenly had their faith in the system restored, and conservatives attacked Obama for being weak on terrorists, even though the Justice Department guaranteed a conviction and, barring that, indefinite detention.
And indefinite detention is clearly the worst policy. Not even a guarantee of a kangaroo trial of any sort, military or civilian, just the idea that the government can lock you up forever and not even tell you when it might look into the justice of your situation.
Last May, Obama stood in front of the Constitution at the National Archives and unveiled a frightening sketch of his detention policy. Some would be tried, others tried before military commission, still others detained forever, and some let go. He did this all in the name of the rule of law, sort of like Bush destroying the free market to save it. At the same time, Dick Cheney was giving a speech to appeal to the base conservatives with his anti-terror fearmongering. But the two sets of policies are not much different. Bush did let hundreds of people go, after all, even if in the name of being tough. And Obama is continuing to detain people without any due processmany of whom did nothing worse than defend their country against invading soldiers, if even thatbut whats worse, hes doing so in the name of the rule of law and a pragmatic balance of liberty with security.
Dialectically, this is a disaster. Neal Katyal, David Cole and other legal experts who heroically called out the Bush administration for its dictatorial detention policy are now praising Obamas balance of interests. It is disheartening. The left-liberal press, while perhaps slightly better at criticizing Obama on these grounds than the rightwing was at criticizing Bush, are nevertheless giving him a pass in all important respects. Obama detains people without charge, and this is bad, but the real enemy is the Tea Parties and Glenn Beck, the left-liberals seem to suggest. Socialized medicine makes it tolerable to countenance a regime hostile to every last civil liberty.
A couple more words on detention policy. Obama was rhetorically anti-torture, as were Bush and McCain, but he has done everything to stall investigations and block recourse, defending John Yoo from a lawsuit by invoking Bushs legal arguments regarding torture and even pushing for an amendment to the Freedom of Information Act with the sole purpose of stopping video evidence of torture from seeing the light of day.
Then there is renditioning, the outsourcing of torture, which Obama railed against as candidate and in writing. Now it looks like the program will continue, but under the oversight of the State Departmentthat is, under the oversight of Hillary Clinton. Raymond Azar, Obamas first rendition victim, was not even an alleged terrorist or belligerent. He was accused of a white-collar crime that shouldnt even be a crimefailing to come forward regarding very minor corruption in defense contracting. Consider this a moment. Our federal government fleeces us of hundreds of billions to shovel into the coffers of the military-industrial complex. Corruption is rampant, and many probably know about it. But for an alleged white-collar non-crime, this Lebanese man working at Sima International was arrested in Afghanistan and, according to his testimony, taken to Bagram, deprived of sleep, stripped naked, subjected to extreme temperatures and stress positions, deprived of food, confined in a metal box and railroaded into a plea bargain lest he never see his family again. When this happened under Bush to alleged terrorists, the left-liberals cried foul. When it happened under Bush to someone alleged of Martha-Stewart-level criminality, almost no one says anything. Expanding the lawless torture state to cover offenses that should simply result in being fired from his contracting position.
Everything is just ramped up under Obama. Instead of state secrets to protect information on the warrantless wiretapping, they claim sovereign immunity. Instead of a poor excuse for law at Gitmo, they celebrate no law at all at Bagram. Everything is sold in the name of the rule of law and American decency, but the policies are the same or worse. Now they want the power to indefinitely detain U.S. citizens on U.S. soil and Obama claims the right to assassinate U.S. citizens he deems enemies of the empire as long as they are on foreign soil. We live under a leviathan where there is no geographic escape. If you managed to escape the Soviet Union, its jurisdiction was mostly behind you. If you leave America, you could still have to pay taxes and if they deem you an enemy combatant you can be liquidated by drone attack in the name of national security.
Of course, detention policy is only one of many concerns for civil libertarians, although it really does get to the crux of the totalitarianism that sits behind the mask of American security policy. We now have a TSA that is getting only worse, with full-body scans being implemented so as to stop the Christmas bomber, which probably wouldnt have been stopped this way. Immediately after the failed bombing, blankets were taken away from commercial passengersas though not allowing passengers to have blankets makes any sense in light of a man trying to set himself on fire. And of course, all the terrorist attacks being thwarted are being thwarted by private actors, passengers and crew.
A three-strikes-style policy for intellectual property enforcement, a drive to control the internet, where government spying and entrapment crusades are on the increasea lot of bad is accelerating under Obama. We have the TSA contractors pitching programs to monitor behavior in airports to identify troublemakers. The Democrats rhetorically condemn racial profiling but they have nothing against facial profiling. Have you ever been tired, frustrated or impatient in an airport? Youd better cut it out.
With a little victory for campaign finance issues in the Supreme Court, we saw just how situational the lefts devotion to and understanding of the First Amendment is. We are getting all the extra attacks on the Bill of Rights youd expect from a Democrat, without any retrenchment of the Republican national security state.
It is like the 1990s Clinton era, with hysteria directed against the Democrats version of the othertax protesters, militia men, the anti-census cultural conservatives of rural middle America who are lumped together with Nazis and the KKK under Homeland Securitys warnings of rightwing extremism. But the anti-Muslim police state persists. Thus, you had better be patriotic, but not too patriotic. You had better support the troops but veterans are suspected terrorists. The SPLC is now back in business as essentially an arm of the state, warning that the Oathkeepers are only a couple steps away from those who would violate federal lynching laws. But the antiwar movement, or whats left of it, is doubtless still being spied on. We live under an era of McCarthyism mixed with the Brown Scare where the only kind of fanatics that are considered respectable are those on the spectrum between Obama and McCain. Birthers and truthers and all outside establishment thinking are now a government concern. We have Cass Sunstein of the Office of Administrative and Regulatory Affairs calling for the disruption of so-called conspiracy theoriesthat is, any theory that undermines the governmentalthough he does admit in his paper that some of them are true.
The move on the left to go after thought crime is very frightening. When that nutcase van Brunn murdered the Holocaust Museum Security guard, the progressive left began talking about banning hate speech, and by that they mean everything ranging from Stormfront to Michael Savage. Only a few left-liberals like Glenn Greenwald have solidly kept their heads together. Most of them seem to want to link together every isolated incident of violence that could be feasibly considered rightwing as one big conspiracy and go after the extreme right in a way that makes the war on terror seem like a coherent strategy. And they think were paranoid.
The war on drugs is no more tame than before, except marginally on medical marijuana raids. But in fact, even here there is a dark side. Obama says he will not raid clinics that operate under state law. But they raided a dispensary in California for allegedly violating sales taxes, bringing about a worrisome precedent whereby the feds will investigate state criminal law violations and, without proving them beyond a reasonable doubt, will use them to trigger federal legal action. If California decriminalizes recreational marijuana this November, the Obama administration will have to face a tough choice. If it decides to let California become a green state, it will be because of the de facto nullification of pot laws on the state levelan encouraging trend along with similar activism to protect gun rights and resist Obamacare. Of course, health care reminds us of the inconsistent theoretical devotion to personal liberty and the right to choose on the left, as this intimate area promises to become even more bureaucratized and corporatized, with the IRS enforcing the mandate to buy private insurance. This fascist scheme illustrates the real despotic police power involved in the welfare state and tax policy, which left-liberals seem to always ignore. If the state says you owe taxes, you have no right to be judged by a jury of your peers, no due process before your property is deprived for so-called public use.
Gun rights are under attack, but its been pleasing to see that Obama has not moved as far forward toward disarmament as Americans have in arming themselves. Gun rights are just as important as anyone here thinks they are, but they are not a panacea of course. The Second Amendment is a bulwark against tyranny, but an armed statist culture is not. If you think theres no such thing as armed slaves I ask you to type military conscription in Wikipedia. But on one level I actually think gun rights are better secured under Democratsnot because they are pro-gun but because everyone knows they are anti-gun. Ironically, gun rights might even be stronger now, with all the great stuff happening on the state level to give the Tenth Amendment some teeth. When Bush rounded up weapons door to door after Katrina, the NRA came out with a perfunctory reprimand. Obama is even afraid to directly denounce those who bring guns to his speaking events. This could all change, of course, and Rahm Emanuels idea to disarm all Americans on the no-fly list should make us all lose a bit of sleep, but I do like being a contrarian and I think gun rights are at least no more under threat than they were under Bush. This might be thanks largely to the rightwingers who fear their guns being stripped from them. If so, they had better keep clinging.
The left-wing attack on so-called civil liberties, the unreliability to say the least of Democrats to guard due process, the rule of law, free speechthe way a constitutional law lecturer who every rightwinger feared would abolish police agencies, free prisoners and let every war on terror detainee go home freely turned around and entrenched every Bush policy into an even more permanent status of our legal systemis a source of confusion for many, especially on the left, but it should not be.
First, a historical point. All the lefts presidents were the greatest opponents of civil liberties. Woodrow Wilsons war on communists and left-radicals was infinitely worse than Joe McCarthys hectoring of high government officials. Wilson put people in prison for saying the draft is unconstitutional and deported anarchists to Bolshevik Russia. I thank my lucky stars not to have lived under Wilson, who even jailed a man for criticizing England in a patriotic movie about the American Revolution.
Franklin Roosevelt interned 100,000 Japanese Americans, but since he got us out of the Great Depression supposedly by expanding American fascism, he gets a pass. He also banned marijuana and set up an office of censorship, ready to jail people for their opinions on left and right. The left loves FDR, even though he would have presumably shipped every Arab and Muslim American into a concentration camp had Manhattan been attacked on his watch. The left loves JFK and LBJ, who agitated the antiwar movement with infiltrators and spied on Civil Rights activists. None of this even includes these monsters use of military conscription, a particularly evil form of slavery.
But most of the left does not see conscription as slavery, nor taxation as theft, nor aggressive war as murderous. And this cuts to the core of the problem with leftist civil libertarianism. It is almost always based on a tissue of incoherencies. This is what we must explain to those genuinely disappointed with Obama, who authentically believe that the right to a trial or a right to free speech is more important than a right to a free lunch.
We must explain that leftism cannot sustain and defend civil liberties, since true civil liberties are bound up with the ethics and logic of private property. The left used to complain that the freedom of press is worthless if you cant afford a press. Now everyone has a blog and the left naïvely wants the government to have control over everything online. The egalitarian mindset looks at the internet, where not all are created equal, and demands the FCC do something about it.
Since the egalitarian, social-democratic, progressive managerial left hates private property rights and the free market and buys into the pernicious myth that the centralizing democratic state is an extension of the peoples collective will, not just the protector but granter of liberties, it is this philosophical bankruptcy that must be challenged if their devotion to civil liberties is to be any more than window dressing. We dont love the rule of law because we want to be able to trust judicial authorities or worship due process as an end in itselfwe defend due process only because we dont trust judicial authorities, never will, and the evil of the state must be restrained in any and all possible ways. Whether this is by cheering for the defense attorneys, as we should, or cheering for secession, as we should, it is not that we see the state as perfectable but as inevitably hopelessly immoral that we would favor anything that gets in the way of their guns.
The left must be converted to libertarianism, and some of them can, just as some of the right can, but it is as clear to me as ever that the desire to separate some freedoms from others makes it impossible to reliably defend any. The Republicans were supposed to deliver a government at least slightly smaller than Al Gore would have given. Instead they started two murderous wars, destroyed the economy more than Clinton would have in 30 years, and desecrated most of the remaining virtues of the Constitution. Obama was supposed to deliver us from these excesses and has instead stepped on the gas. The whole time, the people on Team A or B cheer on their champions and lose sight of principle, if they had any to begin with. To say Clinton killed a bunch of peaceful if strange people in Waco was simply seen as being on the Republican side, so virtually the entire left defended that massacre.
Civil liberties are a bit of a misnomer. Individual liberties are the real issue, and due process, Bill of Rights protections and the like are only a means to an enda means, hopefully, of restraining the state on the margins through some socially demanded and set process. But the nature of the state is it can only be institutionally restrained in two ways: by public opinion, which shapes the states boundaries, and the laws of economics, which no state can outright repeal.
When a left-liberal friend expresses disappointment with Obamas war on the Bill of Rights, just note that it was inevitable. This is a party that is hostile to private property, the anchor of all individual liberties and rights, and enamored of the managerial central state, the greatest modern enemy of all liberties. Leftists will have to make a choicebail on their civil libertarianism, as most did under FDR, defending Japanese Internment and national command economics, or bailing on their dream of creating social paradise, or even fostering society, through the violent means of central planning. We must be there to explain how it all goes together, and although I am pessimistic we will break most of Obamas groupies out of the hypnotic delusions of his professorial and literate American Idol authoritarianism, we will convince some, even many, one by one, to abandon the rot of soft socialism that has plagued the American left since World War I, and instead embrace the only ethic that can morally transcend Bushs and Obamas dungeons, wiretaps and crackdowns on dissent: The ethic of anti-state libertarianism grounded in private property. And as they come in, one by one, let us welcome them with open arms as we do our slow and uphill work to bring the police state down.
Reprinted with permission. Copyright © 2010 Campaign for Liberty
|Anthony Gregory is a Research Fellow at the Independent Institute and author of the award-winning Independent book, The Power of Habeas Corpus in America: From the King's Prerogative to the War on Terror.|
THE POWER OF HABEAS CORPUS IN AMERICA: From the Kings Prerogative to the War on Terror
As perhaps the most important legal protection, habeas corpus has a rich history from medieval England to modern America involving opportunistic power plays, political hypocrisy, ad hoc jurisprudence, and many failures in effectively securing individual liberty.