Through the looking glass with Obama, McCain, the Constitution, and FISA.
By mw | Related entries in 2008 Election, Barack, Civil Liberties, Constitution, Democrats, McCain
“I know what you’re thinking about,’ said Tweedledum; `but it isn’t so, nohow. `Contrariwise,’ continued Tweedledee, `if it was so, it might be; and if it were so, it would be; but as it isn’t, it ain’t. That’s logic.”
- Lewis Carrol - Through the Looking Glass
As a self described “libertarian-leaning” independent, I have struggled to find satisfaction in the voting booth. I would like to vote for candidates that are not only consistent with my beliefs [To whit: Federal government should be limited in scope, provide for common defense, protect and respect individual rights, spend and tax in a fiscally responsible manner, provide effective oversight of elected and appointed representatives, legislate carefully and slowly, and pass only laws that are tempered in the fire of partisan debate], but also offer hope of having a practical real-world policy impact on the operation of our federal government. This latter criteria excludes voting for a third party like the Libertarians, which, while more consistent with my views, are impotent in implementing actual policy and therefore IMHO a wasted vote.
The closest I have come to a satisfactory voting strategy was outlined in my post “Voting By Objective“. The objectives listed above have historically been most closely addressed by voting for divided government. Problem being, this voting strategy requires holding your nose and frequently casting a vote for candidates with the stench of statist big government policies that are hostile to constitutional freedoms.
Case in point, the 2008 presumptive nominees for President.
[Long post continues below the fold and/or at Divided We Stand United We Fall]
Lets start with the Republican John McCain. How can a limited government advocate support a candidate who has little or no regard for either the First Amendment or Habeas Corpus? George Will asks the right question of John McCain:
“McCain, co-author of the McCain-Feingold law that abridges the right of free political speech, has referred disparagingly to, as he puts it, “quote ‘First Amendment rights.’ ” Now he dismissively speaks of “so-called, quote ‘habeas corpus suits.’ ” He who wants to reassure constitutionalist conservatives that he understands the importance of limited government should be reminded why the habeas right has long been known as “the great writ of liberty.” No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America’s Constitution, which limits Congress’s power to revoke habeas corpus to periods of rebellion or invasion. Is it, as McCain suggests, indefensible to conclude that Congress exceeded its authority when, with the Military Commissions Act (2006), it withdrew any federal court jurisdiction over the detainees’ habeas claims? As the conservative and libertarian Cato Institute argued in its amicus brief in support of the petitioning detainees, habeas, in the context of U.S. constitutional law, “is a separation of powers principle” involving the judicial and executive branches. The latter cannot be the only judge of its own judgment. n Marbury v. Madison (1803), which launched and validated judicial supervision of America’s democratic government, Chief Justice John Marshall asked: “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Those are pertinent questions for McCain, who aspires to take the presidential oath to defend the Constitution.
But what of the Democratic alternative, Barack Obama? Last week, exercising political triangulation calculus than makes the Clinton’s campaign efforts look like remedial arithmetic, he reversed himself on the FISA “compromise” and announced his support for the bill. In so doing, he threw his support behind a broad expansion of the powers of the executive branch that tramples the 4th amendment, fails to hold anyone accountable for violations of the existing law of the land, and undermines the very concept of Rule of Law. There are many left-of-center blogs, columnists, blogs, organizations, politicians and more blogs that have outlined the problems with this bill, but since we invoked George Will to lecture McCain, we’ll lean on the equally articulate Glenn Greenwald to school Obama:
“It is absolutely false that the only unconstitutional and destructive provision of this “compromise” bill is the telecom amnesty part. It’s true that most people working to defeat the Cheney/Rockefeller bill viewed opposition to telecom amnesty as the most politically potent way to defeat the bill, but the bill’s expansion of warrantless eavesdropping powers vested in the President, and its evisceration of safeguards against abuses of those powers, is at least as long-lasting and destructive as the telecom amnesty provisions. The bill legalizes many of the warrantless eavesdropping activities George Bush secretly and illegally ordered in 2001. Those warrantless eavesdropping powers violate core Fourth Amendment protections. And Barack Obama now supports all of it, and will vote it into law. Those are just facts.“
One has to wonder why Obama would be so cavalier about undermining the fourth amendment and the rule of law. I suspect this has something to do with it:
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Out of eight categories listed in the poll, Terrorism is the only one where the electorate thinks McCain would do a better job (outside the poll margin of error). In that category McCain leads by a very large margin. As a consequence we see McCain doubling down on his only strength, and Obama working to shore up his only weakness. The resulting “Alice in Wonderland” spectacle - Our two Presidential candidates are competing on the basis of who is willing to remove more constitutional protections and take more of our rights in the name of protecting us from terrorism. Pick your poison.
This is just depressing as hell. Jack Balkin has a different but equally depressing explanation:
“Barack Obama plans to be the next President of the United States. Once he becomes President, he will be in the same position as George W. Bush: he wants all the power he needs to protect the country… Perhaps it gives a bit too much power to the executive. But he plans to be the executive, and he can institute internal checks within the Executive Branch that can keep it from violating civil liberties as he understands them. And not to put too fine a point on it, once he becomes president, he will likely see civil liberties issues from a different perspective anyway.”
So, between the sitting President and the two candidates to replace him, all believe in expanding the power of the executive branch, even to the point of overruling the protections of the Bill of Rights as they see fit. All three - Bush, McCain, Obama. Actions speak louder than words, and when the rubber meets the road on real bills like the compromise FISA bill, there is no qualitative difference on their views of the unitary executive, regardless of what they say to gullible supporters.
What is Obama’s explanation for this support? His rationale is explicit:
“Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people.”
He then goes on to explain why he is supporting a bill that does not respect the rule of law, nor the privacy and civil liberties of the American people. Let us be clear - Obama is explicitly and consciously playing the terrorism “Fear Card” to justify this decision. It is the exact same formulation he has campaigned against in the Bush administration, and the very thing that he decried as the “old politics of fear” when criticizing the Clinton “Its 3 AM” ad.
Particularly mystifying are the Obama supporters who were so critical of the Clinton ad (JG), but now give Obama a free pass (JG) on a FISA flip flop that invokes the same fears, but with far more serious and long lasting implications for the rule of law.
Glenn Greenwald goes on to warn of the dangers in this kind of uncritical support for a candidate:
“…no good comes from lending uncritical support to a political leader, or cheering them on when they do bad and destructive things, or using twisted rationalizations to justify their full-scale assault on your core political values. The overriding lesson of the last seven years is that political figures, more than they need anything else, need checks and limits. That is just as important to keep in mind — probably more so — when you love or revere a political leader as it is when you detest one… What Barack Obama did here was wrong and destructive. He’s supporting a bill that is a full-scale assault on our Constitution and an endorsement of the premise that our laws can be broken by the political and corporate elite whenever the scary specter of The Terrorists can be invoked to justify it… In 1799, Thomas Jefferson echoed that: “Free government is founded in jealousy, not confidence. . . . Let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitutions.” Between (a) relying on the limitations imposed by the Constitution or (b) placing faith in the promises of a political leader not to abuse his unchecked power, it isn’t really a difficult choice — at least it ought not to be, no matter who the political leader in question happens to be.”
One of the most seductive arguments against voting to maintain divided government is framed like this: “We need a single party Democratic government for a while, just to restore balance and undo the damage that has been created by the eight years of George W. Bush and six years of single party Republican rule.” That illusion has now been shattered. Instead of undoing the damage, we are seeing the Democratic Party leadership of Nancy Pelosi, Steny Hoyer, Harry Reid and the Democratic presumptive nominee Barack Obama lead a Democratic Senate and Democratic House of Representatives to make the problem worse, by dramatically expanding the power of the Presidency at the expense of the Constitution, the courts, the Congress and Bill of Rights. That is the meaning of the compromise FISA bill that Obama and McCain support.
Voting for an all Democratic Government in 2009 with expanded majorities and a potential filibuster-proof Senate is not the answer. It will certainly create more problems than it solves.
For more, Damozel at The Moderate Voice has a good compilation of blogger reaction to the Obama flip-flop, while Ed Morrissey at HotAir outlines Obama’s history on the issue.
What to do?
If you are frustrated as I am about the choices we have for President, and reluctant to contribute to either campaign, Political Action Committees focused on specific issues like stopping the FISA compromise bill provide a more satisfying alternative. A tip of the hat to Ka1igu1a at Freedom Democrat for pointing me to one very interesting example that brings progressives and libertarians together in common cause on FISA - TheStrangeBedfellows Alliance:
“… the Blue America PAC is targeting Blue Dog Democrats like Steny Hoyer for their continued roles as complicit enablers of Bush’s sham FISA bill. However, it should be noted that a more encompassing movement effort has recently sprung up, forged by both progressive and libertarians that will be using the Blue America PAC as a Phase I of of a multi-Phase strategy. It’s being dubbed the Strange Bedfellows alliance. The headliners in this alliance are the ACLU, Glenn Greenwald, The Ron Paul Money Bomb team over at Break the Matrix, Jane Hamsher of Firedoglake, Matt Stoller of Open Left, and Ari Melber of The Nation.”
FWIW, the alliance now also includes mw at Divided We Stand United We Fall.
If you are not looking to make a contribution, but still want to help fight the FISA compromise that will come to Senate floor this week, McJoan at DailyKos is tracking the progress of the bill and key Senators to contact. Although the fix is in, and it is likely that this pig will pass (after some Kabuki theater by Harry Reid and Barack Obama to provide themselves political cover) it is important to keep a very bright spotlight on the players in this show.
This entry was posted on Tuesday, June 24th, 2008 and is filed under 2008 Election, Barack, Civil Liberties, Constitution, Democrats, McCain. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
June 24th, 2008 at 2:27 pm
Unlike your last piece MW, this is quite well done and informative. Thank you very much. I agree whole-heartedly with you on nearly every point you’ve illustrated here, well written. I do have a passion for the limit of government particularly as it applies to our personal affairs or our legal rights. And you do a good job of summing up the feelings of what I believe would be a vast body of the electorate. Regrettably I’m of the notion that far too few people know or understand precisely what is at stake in this arena. Do you know of any ways I could voice my concerns over this issue other than simply writing my senators or house members?
June 24th, 2008 at 3:09 pm
Intriguing post. A few thoughts…
First, here’s my post about the FISA compromise, which was written before I knew Obama was supporting it. Simply put, the new FISA bill is better than what had existed before because it forces the government to get warrants before “wiretapping” inside the US.
Second, how you equate criticism of Hillary’s 3 AM ad as being inconsistent with supporting a FISA compromise is beyond me. The bill no longer allows wiretapping without warrants, and Greenwald’s assertion that it legalizes this just because telcoms get off the hook is just plain wrong and is not, as he states, a “fact”. This new bill removes the “we don’t have time for warrants” practice that this administration previously engaged in, and that’s a HUGE step in the right direction. If it takes immunity for past telcom action to get there, then I’m for that. And that’s engaging in the art of what’s possible, not what’s ideal.
Third, this post is more reactionary and fear filled than any legislation Obama voted for, and, as such, is much more akin to Hillary’s 3 AM ad. Obama sought compromise on ONE piece of legislation that restored some of our civil rights with regards to FISA activities. You and I both know that this doesn’t come anywhere close to McCain’s record on sanctioning torture and stripping people of Habeas rights.
Last, and certainly not least, while I respect your divided government theory, if you really think that voting for Republicans for Congress will result in more civil liberties and adherence to the Constitution, I fear you’re convincing yourself of something that the facts don’t support. Republicans will fight a Dem president tooth and nail because terrorism is one of the only issues they have left to claim some amount of leadership on. Also, what if you vote for a Republican congress and a Dem president, but McCain gets elected? Your theory just got thrown out of the window.
Again, an intriguing post, but there are simply too many holes in the divided government philosophy for anybody but yourself to really buy into it.
June 24th, 2008 at 5:48 pm
Well, JG, you’re arguing real world possibilities, whereas MW is arguing a political philosophy. He is not guaranteeing divided government, only saying he would prefer it.
I don’t think MW’s discussion of the FISA amendment as it stands is all that flawed; frankly, I think your interpretation is a little to kind. You say it no longer allows wiretapping without warrants, but it does allow the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any review. Furthermore, what oversight is provided is minimal. Under the proposal, the FISA Court reviews general procedures for targeting and minimizing the use of information that is collected, but does not require the court know who, what or where or when tapping will occur. The bill also lacks language about when the government should return to the FISA court and obtain an individualized order if it wants to continue listening to a US person’s communications. The bill also permits the government to start a spying program and wait to go to court for up to 7 days every time “intelligence important to the national security of the US may be lost or not timely acquired.” Assuming the government even follows this (you know, like the Bush administration followed the existing FISA laws–oh yeah, they didn’t, so why do you assume future governments will follow this?) And that does not even address the Telco immunity.
As for Divided Government as a philosophy, well, to me it’s always been a Pascal’s Wager kind of thing….it’s not the best we can do, but it puts the breaks on the worst.
June 24th, 2008 at 6:04 pm
[...] Donklephant: “… One of the most seductive arguments against voting to maintain divided government is framed like this: “We need a single party Democratic government for a while, just to restore balance and undo the damage that has been created by the eight years of George W. Bush and six years of single party Republican rule.” That illusion has now been shattered. Instead of undoing the damage, we are seeing the Democratic Party leadership of Nancy Pelosi, Steny Hoyer, Harry Reid and the Democratic presumptive nominee Barack Obama lead a Democratic Senate and Democratic House of Representatives to make the problem worse, by dramatically expanding the power of the Presidency at the expense of the Constitution, the courts, the Congress and Bill of Rights. That is the meaning of the compromise FISA bill that Obama and McCain support. …” Bookmark: Tags: 4th Amendment, Barack Obama, Bush, Cheney, Conservatism, Constitution, Data-Mining, Datamining, Democrats, Dick Cheney, FISA, Nancy Pelosi, Oligarchy, President Bush, Steny Hoyer, Telecom Immunity, Telecoms, Two Party System, Wiretapping [...]
June 25th, 2008 at 1:03 am
Thanks gerryf, I’ll take it from here.
I guess this all depends on what you mean by “what existed before”. I suspect you don’t really understand the current status of FISA. If you mean it is better than the Bush Administration sponsored “Protect America Act” that passed last August, then your statement is true, but also irrelevant. That law expired in February when Congress failed to reach an agreement to extend it. We are now operating again under the original FISA law passed in 1978, as amended over the years. That law already permits wide latitude for the executive to electronically eavesdrop, and has worked fine over the years for that purpose, with many legislators and scholars asserting that it does not need an overhaul, but rather just some fine tuning. By comparison to the current law, the FISA “compromise” just passed is far far worse, with many loopholes that the executive can abuse to bypass or ignore the jurisdiction of the FISA court.
The original FISA bill that is current law does not allow wiretapping without warrants. It never did. The Bush administration simply chose to violate this law with the complicity of the Telcos. The FISA compromise grants retroactive immunity for this illegal activity, and codifies procedures that would permit the executive branch to continue to permanently exploit loopholes and exceptions in the future, with far less protection than we have now. And that is a HUGE step in the wrong direction. You also misread Greenwald. That is not what he said.
That is because I was not equating them. I was questioning how you could be so critical of Hillary’s 3AM ad as the “politics of fear” in what is after all only a campaign ad, but accept Obama’s identical use of the “politics of fear” as a rationale for surrendering constitutional protections.
No it doesn’t. Flat wrong. It erodes civil rights from current FISA law.
Actually I have consistently stated that the Republicans absolutely cannot regain either the House or Senate in 2008 and in fact will certainly lose ground in both houses in 2008. Further I have stated repeatedly in other posts that the only way to avoid a single party government is to elect a Republican president. I am not happy with that choice either (stay tuned for a future post on the subject of limited choices) If these recent polls hold up, that is not going to happen anyway. It is choice of bad and worse, so I’ll probably choose bad. The first opportunity the Republicans will have to regain either house will be in 2010. We will likely have at least two years to see just how good the Dems will be at “restoring civil liberties”, controlling spending, exercising fiscal responsibility, managing the corrupting earmarks, etc when they have all the keys to the castle. They will have no governor on their worst impulses just as the Republicans did not. And they will likely behave and govern just as badly. That is the historical precedent of single party government.
au contraire, mon ami. You can do your own googling or technorati searches if you want, but I’ve noticed an increasing number of MSM and higher profile bloggers starting to promote it. I think it is at the beginning stages of ramping up as a meme. I saw a similar pattern as we ramped into the mid-terms in ‘06. Of course, then it was partisan Dems that thought it was a good idea, while partisan Republicans pooh-poohed it. This time it will be the partisan Republicans that embrace it while partisan Democrats reject it. It may get more play this time because it is really the only good reason for independents and/or libertarians to vote for McCain. I’d guess the meme can swing as much as 5-8% of the indy vote.
As I said, if the current polls hold up it won’t matter. The swing vote gets swamped. If it is a close election, it is an argument that could make a difference. We’ll see.
June 25th, 2008 at 12:18 pm
mw,
Well, you’re suspecting incorrectly.
I know the situation very well, and whereas you say a comparison to Bush’s previous provisions is irrelevant, I think that ignores something which is plainly inevitable. Is it true that Bush’s awful FISA provisions have expired? Yes. Of course. Anybody who follows this knows that happened, and I didn’t think I had to state that I knew this.
However, the reality is that a new bill is coming, and quickly. 68 senators voted for a reupping of FISA earlier this year, which include a much more lax version telcom immunity. Then it was sent to the House, which made the immunity clauses more stringent. As opposed to the Senate version, the House’s forces telcoms to make sure they have a court find that they meet certain conditions for immunity. That’s a distinct difference, and since this train has left that station (even though you and Greenwald want to wish it hasn’t) it’s an important one.
So, again, your argument that this erodes civil liberties from current FISA laws completely ignores the fact that the law is destined to change very soon anyway. My position acknowledges this reality and favors a pragmatic solution where we get more oversight instead of less.
Seen in this light, the 3 AM reference is even less apt in challenging myself and Obama. This isn’t a “the terrorists are going to get us if we don’t pass this” situation, and neither I nor Obama have suggested anything remotely close to this. Instead, this is understanding the realities of the situation and finding the best solution that meets the needs of now. The 3 AM ad was nebulous, and therefore pure and blatant fear mongering.
Switching gears…
So you’re voting for McCain? Still, you’re divided government theory doesn’t hold up if your aim is to get more civil liberties instead of fewer. The only way that will happen is with a unified Democratic government that can roll back the abuses of the Bush administration. You and I both know this is a much more likely scenario and so it clearly falls outside of your philosophical approach.
June 25th, 2008 at 2:55 pm
I’ll go with the gear switch.
I am undeclared, although it is clear that electing McCain is the only way to maintain divided government for the next two years. I phrase it this way, because I want to work through the counter arguments on my blog and on the Donk. Besides, I need something to write about over the next four months, since I find both candidates (considered in a vacuum) unacceptable on purely libertarian principles. This is truly a “lesser of two evils” decision for me. The two best counter arguments to voting for divided government is the one you mention (We need unified Dem government to roll back Republican abuses) and considering the Iraq War as an over-riding stand-alone issue that takes precedence over all other considerations.
Is that going to be enough? Consider. The Dems will pick up at least 20 seats in the house and perhaps as many as 70. They will pick up at least 5 seats in the Senate and perhaps as many as 10. This is not really going to be a decision between Obama and McCain.
It is potentially a decision between:
A) Barack Obama + Nancy Pelosi leading a 100 seat majority in the House of Representatives + Harry Reid or Hillary Clinton leading a 60-40 filibuster proof majority in the Senate.
B) John McCain + Nancy Pelosi leading a 100 seat majority in the House of Representatives + Harry Reid or Hillary Clinton leading a 60-40 filibuster proof majority in the Senate.
I submit that having the opposition party so marginalized in option A is dangerous in the extreme. At no point during the disaster that was the six year run of unified Republican Party Government, did they ever wield that level of power over the Democrats.
The question I think everyone needs to ask:
“Do you really trust Obama, Clinton, Reid, Pelosi, Stoyer and the Democrats with that much unfettered power? “
July 1st, 2008 at 12:24 pm
[...] for his kid-glove (fawning? sycophant?) treatment of Barack Obama, particularly his coverage of Obama’s flip-flop on opposition to the very bad FISA compromise. Last night Olbermann reversed himself (sort of) and expressed some mild criticism of Obama’s [...]
July 5th, 2008 at 10:04 pm
meg Says:
July 5, 2008 at 9:45 pm
Sen. Obama and Sen. Clinton have been getting an incredible amount of free air time, hours of it, on the major news outlets, even on FOX. Is the media going to choose this president also?
Yes, I realize they are making history, based on race and gender, but we are voting for the most important leader of the world !! We aren’t voting a popularity contest and the winner goes home with a trophy and a million bucks, this is voting for someone who is going to impact our everyday lives, and our place in the world. I have heard Sen. Obama say things that sound as if he thinks he would be above the Constitution. This DOES matter, that document was written by men whose recent ancestors escaped an extremely violent society led, at times, by those who refused to follow any laws of decency. Our Constitution was designed to prevent that abuse, and the checks and balances are there to protect us from another tyrant; however, we are in danger of throwing it all away if we neglect our responsibility and vote for a president who does as he pleases, and appoints a cabinet with his values. Be careful how you use the freedom our ancestors bought with their blood and sweat and tears, and then laid it at our feet, trusting us to treasure it as they did. 7-6-08
July 6th, 2008 at 10:34 am
[...] a week ago JG commented on one of my posts with this: “…there are simply too many holes in the divided government philosophy for anybody but [...]
July 10th, 2008 at 2:53 pm
[...] great. I particularly don’t feel like the idea of contributing or supporting either of the Tweedledum Tweedledee presidential candidates who have so little respect for our Constitution and the civil liberties of [...]