I fully understand that – in the most progressive major city with the most progressive governing body in the country – it is impossible to resist the temptation to occasionally legislate based on their core belief that no citizen can make a decision for themselves or their family without the Supervisors benevolent dictates guiding forcing them to “do the right thing”. But – when even the Daily Show is pointing and laughing – you’d think our Supes might get a clue.

Featured in the clip is SF Supervisor Eric Mar as he is made to look particularly stupid by Daily Show comedian Asaif Mandvi. It’s not like that is a difficult thing to do with our Board of Supes, but Asaif dishes it out with an extra helping of much deserved derision. I can only hope that Mar’s decision to appear on The Daily Show was a career limiting move.

Our local fishwrap transcribes the funniest bit:

“But the most brutal part comes when Mar explains that his 10-year-old daughter, Jade, doesn’t like fast food anymore after watching the documentary “Super Size Me” with him. Those opposed to the to ban maintain it’s up to parents, not McDonalds, to ensure their kids learn healthy habits.

Mandvi: “So she learned from her parents?”
Mar: “That’s a large part of it.”
Mandvi: (staring in wide-eyed disbelief) “Would it be hard to pass a law to force Netflix to send ‘Super Size Me’ to every parent in San Francisco?”
Mar: “We can’t force Netflix, a private company, to do something like that.”
Mandvi: “Are you serious right now?”
Mar:“We have no power to force Netflix or a private company like that to change a business practice.”
Mandvi: “So on one hand, you’re like, ‘We can’t do that’ but on the other hand, you are doing that.”

Mar, looking very tired, shakes his head, stumbles over one of the progressive supervisor’s favorite words, equitability, and mercifully the interview ends. Oy.”

The good news is that four of our Supes have termed out and will be leaving office this week. The bad news is that Eric Mar is not among them.

Reason TV also took note of SF Local Accomplishments in 2010:

Cross posted from Divided We Stand United We Fall.

I suspect that I am the only political blogger who has not yet posted about the mosque/not mosque expected to be built/not built in a location somewhere near/not near ground zero in New York.

I have avoided this issue thus far because I feel a lot like this guy – or this guy – or perhaps like William Shakespeare – “It is a tale told by an idiot, full of sound and fury, signifying nothing.“ I see this as little more than a excuse by partisans and bloggers on both the right and left to flog their favorite bogeymen in the hope of securing a minor political advantage. The significance of this story is just not worth the ink and electrons spilled on it.

But, that has not stopped anyone else, so let me make my position on this question perfectly clear – This blogger stands firmly with Michael Bloomberg, Grover Norquist, Chris Christie, Joe Scarborough, Michael Gerson and Barack Obama (Friday, 8/13/10 version) in support or indifference to the location of the Cordoba project mosque – and stands in opposition to Harry Reid, Howard Dean and Barack Obama (Saturday 8/14/10 version) who do not explicitly support the location of the Cordoba project mosque.

In America, in matters of religious tolerance, there should be no close calls, no qualification of primary principles, and the first amendment should not be location dependent. I am not sympathetic to the distinction of “rights” vs. right which strikes me as a Clinton-esque parsing for those looking to rationalize forcing the Cordoba Project to move the mosque/cultural center.

I”m going to make this easy on myself and crib extensively from a previous post invoking the views of a founding father whose words are as relevant now as they were 230 years ago.

Thomas Jefferson writing in the third person, in a letter to Dr. Jacob De La Motta on the occasion of the 1820 dedication of a synagogue in Savannah, Georgia:

His short letter speaks to both the intent and core convictions of an architect of our country and constitution. Consider the pride and importance that Jefferson invests in the principle of religious freedom and diversity in this letter. He finds it “gratifying” that our country was the “first to prove to the world” the “two truths” that are the most beneficial to human society - “that man can govern himself”, and absolute “religious freedom” is the only answer to “religious dissension”.

Andrew Sullivan reminds us that Islam was explicitly included in Jefferson’s message of tolerance. He quotes from Jefferson’s autobiography where Jefferson expands on the intent of the Virginia Statute For Religious Freedom – “Jefferson On The Toleration Of Islam”:

Finally in a letter to Moredcai Manuel Noah, Jefferson notes that while protection of religious freedom under the law is a necessary condition, it is not sufficient to ensure tolerance and the fair and equitable treatment of all religious belief.

The work of religious tolerance was incomplete in the time of Jefferson, and remains incomplete today. Religious intolerance is an issue that every generation of Americans must face anew. As Americans of good will fought for the principle of religious freedom at the beginning of the American experiment, it falls to Americans of good will in each generation, of every religion, race and creed, to ensure that in their own time their generation remembers and understands that – as regards religion – “divided we stand.”

To wrap this up I will invoke a poet/philosopher of our own time – Mojo Nixon. While these lyrics were written in response to another civil libertarian challenge, I don’t think Mojo would mind my applying them here…

^{Cross-posted from Divided We Stand United We Fall}

UPDATED & EDITED: I added one word to the body of the post. You find it.

This week the ACLU released a disturbing report documenting the permanent enshrinement of the Bush/Cheney definition of the Unitary Executive by the Obama administration. With the tacit acceptance of the Democratic Congress, the balance of power continues to shift heavily to the executive branch. While distressing, the report is unsurprising as it became clear in the first few weeks of the new administration that Obama’s campaign rhetoric of rolling back the Bush/Cheney power grab was just that – empty campaign rhetoric.

The ACLU report “Establishing a New Normal” is summarized here, and the full report linked here [PDF]. The report assesses the record of the first 18 months of the Obama administration across several civil rights categories and is well worth the read.

Excerpted here – a few ACLU report highlights lowlights:

It is easy to point to the hypocrisy of liberals and Democrats who railed with righteous indignation about the Bush/Cheney expansion of executive power, only to be complicit in the continuing erosion of our liberty now. Their deafening silence, kid-glove criticism, and/or rationalizations of the Obama administration’s continued expansion of executive power and consequent institutionalization of the Bush/Cheney Unitary Executive speaks volumes about their prioritizing partisanship over principles.

To be sure – there are principled voices on the left who have consistently and clearly pointed to this administration failure – notably Glenn Greenwald and Jane Hamsher among others:

These voices are too few. The first two years of the Obama administration represent a badly squandered opportunity to undo the damage done by the previous administration.

Worse than the routine partisan hypocrisy by administration apologists, is the complete abrogation of constitutional checks, balances, and executive oversight responsibilities by our Senators and Representatives in Congress.

Fro example, what happened to the soaring rhetoric of Senator Patrick Leahy – who campaigned passionately and relentlessly for the restoration of constitutional Habeas Corpus protections in 2006?

In 2007 I again supported the Leahy follow-on effort to restore Habeas Corpus:

If you click on the petition linked in this quote you’ll note the referenced campaign on the Leahy website no longer exits, replaced with a milquetoast request to send a letter to your senator requesting support. I guess it is just not as high a priority for Leahy if a Democrat has “power that nobody, no king or anybody else set foot in this land, ever thought of having.” I expect Democrats will not be as sanguine about the expanded and institutionalized power of the Obama Unitary Executive when and if a Mitt Romney or Sarah Palin steps behind the wheel of this supercharged presidential machine.

The ACLU report focuses on civil liberties, but the accelerating accretion of executive power over our economic liberties has been equally egregious. I won’t belabor the point in this post, but will simply point out the obvious. Regardless of what one thinks of the merits or politics of the legislation, it is beyond argument that Obamacare and Financial Regulation as passed, dramatically increase the power held by the executive branch. With these laws, Congress granted vast power to faceless bureaucrats in the executive branch with unfettered latitude to set industrial policy, create and enforce broad new regulations over the healthcare and financial industries.

Even beyond these laws, even when operating without a firm legal foundation, this administration has repeatedly demonstrated an eager willingness to push the the boundaries of presidential power.

You’d think, even allowing for partisanship, there would be enough institutional loyalty among our legislators to try to maintain some semblance of balance between the supposedly co-equal legislative and executive branches of government. It is simply not happening. In times of Single Party Rule (as we’ve had for eight of the last ten years) it is Party Über Alles, and the constitutional checks and balances envisioned by the founders between the executive and legislative branch just fade away. This was true with Republicans in 2000-2006, and it is true with Democrats now.

At the rate that the Senate and House have ceded power to the executive branch over the last decade, combined with the lap dog deference most legislators offer to an executive of the same party, the legislature might as well vote itself out of existence. Perhaps they could be functionally replaced by a Legolist e-mail listserv.

The only remaining restraint on executive power today is the judiciary. This is why I have supported and will continue to support Obama nominations to the Supreme Court. My fervent hope is that the new justices will help form a SCOTUS majority that will pull hard on the reigns of the executive branch, declare many of the Bush/Obama administration actions (civil and economic) unconstitutional, and restore some semblance of the rule of law.

Regardless of what you may think of the political leanings of ACLU, they are fighting the good fight for our constitutional protections in the courts and they are doing it regardless of the party in power. They deserve our support. Beyond the courts, the only other way to restrain the extraordinary economic overreach and fiscal irresponsibility of this executive branch is to vote Republican in 2010 and divide this government. Congress only seems to remember their executive oversight responsibilities when the president is not of the same party as the majority in Congress.

^{Cross posted from “Divided We Stand United We Fall“}

About the author: Byron C. Tau is a journalism graduate student at Georgetown and a recent graduate of McGill University in Montreal. You can find him all over the Internet, from his politics and commentary website Heartless and Brainless to his Twitter account to his personal blog. His favorite topics tend to be civil liberties issues, freedom of speech issues, anti-nanny state stuff and hating on the Canadian political system. He also likes to cover the “game” of Washington politics and the usual inside politics process stuff.

The arrest of noted Harvard African-American scholar and The Root co-founder Henry Louis Gates, Jr. spread like wildfire across the blogosphere this week. Today, there are a few additional updates. First, the Smoking Gun obtained and posted the actual arrest report. Second, Slate enlisted the help of the ACLU in explaining away a lot of the charges made against Gates by the Cambridge police. And finally, last night’s prime time press conference on health care saw President Obama delicately wading into the issue in his last press answer, stating:

Now, I don’t know, not having been there and not seeing all the facts, what role race played in that, but I think it’s fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and, number three, what I think we know, separate and apart from this incident, is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. And that’s just a fact.

The story is fraught with political and policy significance on so many levels that it’s no surprise that it spread so quickly. Washington is debating the confirmation of the first Latina Supreme Court associate justice — the same woman who has sparked a firestorm of conservative commentary concerning her judicial decision about affirmative action in New Haven and her comments regarding the jurisprudence of a “wise Latina” being better than a white male. Some commentators pointed out that the arrest happened just as New York Times columnist Ross Douthat wrote a piece saying that race-based affirmative action had to be abolished. Finally, the arrest happened the same week that CNN had been scheduled to run a special with Soledad O’Brien entitled Black in American 2. The political irony is almost palpable and seems to beg the question: does being black in America mean being arrested for disorderly conduct on your own front porch after getting a little miffed?

First, it’s pretty clear that the police acted inappropriately — at least if Gates’ version of the story is to be believed in its entirety. As Slate pointed out, it is a requirement that Massachusetts police show ID when asked. Second, a disorderly conduct charge in the state usually refers to conduct that will spark a riot. Blowing your cool on your front porch hardly seems to endanger polite civil society. Finally, as the Slate Explainer pointed out, getting upset and shouting at a police officer about being racially profiled is about as explicitly political as you can be — and thus count as protected speech under the first amendment.

But if it’s true that the Cambridge police acted foolishly and probably illegally, it could be equally true that this arrest says very little about the overall state of race relations in America or the many public policy debates surrounding it. As President Obama pointed out, racial profiling is a problem across America. I see it everyday in my Washington D.C. neighborhood. But at the same time, does the arrest of one prominent scholar in Massachusetts really negate Douthat’s point that perhaps affirmative action has run its course? Is one anecdotal case in one Massachusetts city really emblematic of the struggles of a whole race of people?

Race in America is a touchy subject, still. The latest Internet meme from today refers to a prominent AMA physician accused of forwarding racist photoshopped caricatures of President Obama as a witch doctor. It’s currently the lead story on Talking Points Memo. What these incidents do reveal is an American public hungry for a frank conversation on race and a media class only perfectly willing to oblige with stale, simplistic race-baiting. What they don’t reveal is a racist, bigoted society rotten to the core.

The rise of Americans like Sonia Sotomayor, Barack Obama, Henry Louis Gates Jr. and others is more than just the tokenism that Martin Luther King Jr. warned Americans to avoid when talking about race. Women comprise a solid majority of college graduates at convocations every spring, and their salaries in major urban areas amongst unmarried, childless women are higher than men in almost all the major urban areas. The President of the United States is an African-American, who garner 66.8 million votes — 8.5 million more than his white, American male rival. Prior to his election, the previous two top foreign policy makers in the Bush Administration were both prominent and well-credential black Americans. There is a large and well-heeled black middle class in this country — one often marginalized in popular culture depictions of urban life media stereotypes and hip-hip rags-to-riches glory stories.

It does us no favors as a society to turn an unfortunate incident at Cambridge into a microcosm for all of American society. There is ample evidence for real and sustained racial progress, and America has mostly moved beyond some of the baser prejudices that haunted her for centuries. There are some barriers to achievement still, just as there are some opportunities for those of any skin color, gender or creed. Just as the election of one African-American hasn’t made racism disappear, the arrest of another hasn’t brought it back in vogue.

The unusual case of a cancer-stricken thirteen year-old who is refusing treatment is quickly becoming one of those unusual and unfortunate legal cases that mix religion, law and the rights of the individual.

With the support of his parents, the thirteen year-old in question is refusing chemotherapy because the family believes in “natural” healing (they are Roman Catholic but also believes in the teachings of a Missouri sect which advocates healing techniques used by some American Indians). The boy has Hodgkin’s lymphoma which is considered highly treatable with chemotherapy. But he quit after one treatment and now a Minnesota district judge has ruled that the parents are being medically negligent and the boy should be placed in foster care and immediately evaluated by cancer specialists. To complicate matters more, the boy and his mother have fled and are hiding from authorities.

The questions here are: Can the state force a minor to undergo a debilitating treatment which could save his life? And, is it negligent, from a legal standpoint, to allow your child to choose to forgo treatment of a serious disease?

Mind you, I think the parents are making a terrible mistake. But I don’t think the questions above are easily answered. Do you?

2008 Senator Lindsey Graham seems to disagree with 2009 Lindsey Graham.

This is Mike Fritz and David Murdock from ANP.

Senator Lindsey Graham was a passionate critic of the Bush Justice attorneys during this past summer’s Armed Services Committee hearings on interrogation.

Lately, however, Graham seems to have had second thoughts on the matter. At a recent Judiciary subcommittee hearing investigating the torture memos, Graham mounted a feisty defense of Jay Bybee, John Yoo and the lawyers who provided legal cover for detainee abuse.

This performance sent producer Mike Fritz back to the ANP archives to confirm that this was indeed the same Lindsey Graham we remembered from the summer, and sure enough, it was. As this video reveals, same guy – different message.

Click to view the whole story at Huffington Post.

First, let me say that I respect Sonny Bunch. A lot. I rarely agree with Sonny, but he is clearly and genuinely interested in engaging those with whom he disagrees.

That said, the posts (and subsequent responsive comment) with which E.D. and Mr. Schwenkler take issue is emblematic of something that has been particularly frustrating to me over the last several days or so. Specifically, I’m frustrated at the certainty with which proponents of waterboarding and various other procedures outlined in the OLC memos proclaim that those procedures were clearly “not torture.”

The fact is, whatever one thinks of the legal acumen demonstrated (or, more accurately, not demonstrated) in the OLC memos, and especially the Bybee memo, they do not provide a basis for concluding that waterboarding, et al – especially when combined in one continuous program – are “clearly” not torture. The Bybee memo itself states quite explicitly that waterboarding in particular is pretty damn close to being torture, going so far as to say that it is a “predicate act” for a finding of torture. So if you’re going to rely on the Bybee memo as an accurate depiction of the law (which it isn’t – seriously, I’ve seen associates fired for less shoddy memos), then at the very least you have to acknowledge that these actions come pretty damn close to being torture, and that there is hardly anything outrageous or unhinged about calling these acts torture.

In other words, if you’re going to rely upon a piece of legal analysis as proof that something is clearly “not torture,” then you probably shouldn’t rely upon a piece of legal analysis that (shoddy as it may be) concludes that said something is pretty damned close to being torture.

Cross-posted at the League of Ordinary Gentlemen.

There was some question, with Obama’s statement on the release of the OLC memos, whether he was making a blanket declaration that there would be no prosecution of former torturers or torture-enablers, or whether he was being wishy-washy.

Today he was asked again. Wishy washy it is.

I take this as, more or less, reassuring.

It reaffirms my belief that Obama is, at worst, opportunistic, a fair weather civil liberties advocate. That sounds like damning with faint praise, and it is, but it’s also a heckuva lot better than the previous administration, for whom opposition to civil liberties was not a matter of convenience shimmying but of hardened ideology, and who took accountability as beginning and ending with an election every four years.

What Obama is indicating, and has indicated, is that he’s not particularly eager to have this matter be center stage, but nor is he particularly eager to get on the wrong side of it, and at the end of the day, he is willing to be persuaded/pushed.

For the record, that position does make clear that we should not expect Obama to take a principled, courageous stand on civil liberties. For those of us who voted for him on the hope that he would stand tall and do the right thing, because it was the right thing to do…eh, not so much. We civil libertarians have been waiting with bated breath to see what kind of a President Obama was going to be in these respects. His campaign rhetoric indicated he might have greatness in him. Some of his actions in office (continuing the Bushian line on habeas corpus, for instance) have caused us to fear that he might be a wolf in sheep’s (or a sheep in wolf’s clothing, I suppose). The reality that is starting to settle in is he’s just another politician.

However, I take his statement today more or less at face value. He is not, personally, particularly inclined towards prosecution, but he’s also more or less not willing to exert overt political pressure to close the door on it. He won’t grease the wheels, but he won’t throw up impediments either. I would certainly vastly prefer it if he were inclined towards positive action on the principle of it, but if the worst we’re going to get out of him is a blank slate waiting for the writing on the wall, I’ll take it.

Obama is clearly not going to be a messianic figure on this matter; he is not going to lead us to the promised land. But nor is he going to stand in the road with his hand to us yelling “stop”. We clearly can’t expect Obama to do the right thing. But I think we can also not expect him to do the wrong one. In that sense, this is not a “good news” sort of situation; it is an absence of bad news. And maybe that shouldn’t strike a positive chord with me, but my bar has been so lowered on civil liberties that I’m positively thrilled at the absence of bad news. At this point, I’ll take it, and it’s also worth noting that where action does hit the President’s desk, so far, his rhetoric has been mealy-mouthed but his actions have tended towards the right. That’s worth something too.

If at the end of the day all we get is immediately stopping the practice and the executive branch not standing in the way of further inquiry/action, that’s not ideal, but it’ll do pig, it’ll do.

—–

So where that leaves things is, ultimately, with the onus on us, the American public. So, let me suggest three courses of action.

The first: FireDogLake has a petition making the rounds, to be delivered to the Attorney General on Thursday. It says simply:

Given the seriousness of these crimes, we the undersigned call for Attorney General Eric Holder to immediately appoint a special prosecutor to determine if criminal proceedings are warranted for Justice Department lawyers who legalized these crimes, and the high level executive branch officials who ordered them.

I suggest you sign it.

Second, the only reason the OLC memos were released at all is the dogged pursuit of them by, more or less, a single organization, which has been in the trenches fighting the good fight for many years. I’m talking about the American Civil Liberties Union. Obama’s skittishness on this matter is a good reminder why the work they do is crucial no matter which party is in power or which way the winds are blowing. Instead of making a donation to a candidate this cycle, consider sending some help their way

And third, get candidates on record. Obama has made it pretty clear that he considers this whole thing to be a headache he’d just assume not to deal with. But he’s wrong in one critical respect: we can’t move forward until we faced our past (and hell, our present). If Congress doesn’t want to deal with it, fine, but make them put their names to that. One interesting path to that: start pushing for impeachment proceedings against John Bybee. It won’t pass, but make those f’ers vote on it.

Obama is not The One. He’s not Scott Bacula, jumping into the Presidency to right the wrongs of the guy whose shoes he’s stepping into. If we want action on this, we have to take it.

Today, the Supreme Court heard an important case that could greatly affect the McCain-Feingold campaign laws. It involves a movie highly critical of Hillary Clinton which was originally scheduled for release during the Democratic primaries but was stopped by judges concerned with its legality.

This case illustrates the inherent problems with McCain-Feingold. Namely, it forces judges to make decisions about what is and isn’t free speech. In this case, the Supreme Court must now decide the line between an allowable documentary and an illegal campaign ad.

Arguing that a movie and a campaign ad are the same could have adverse consequences for the McCain-Feingold law, Justice Anthony Kennedy said. “If we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall,” Kennedy said.

Citizens United wanted to pay for its documentary to be shown on home video-on-demand, and for ads promoting the movie to be shown in key states while the former New York senator was competing with President Barack Obama for the Democratic presidential nomination.

No one is arguing that this movie isn’t an attempt to discredit and politically damage Hillary Clinton. The question is: do the makers have a right to advertise and distribute their movie as any other movie-maker would OR are they practicing a form of restricted speech that must conform to specific rules about when and how the message can be shared?

Do we really want to be giving judges the power to decide what is and what is not allowable political speech? McCain-Feingold may have arisen from a noble enough urge (to keep money from corrupting politics) but its effect has been to dampen free speech. For those who support the law, let me ask: have elections been any “cleaner” or has money played any less of a role in the years since McCain-Feingold became law? Even if the law is, in principle, “good,” it hasn’t been good enough in practice to justify the restrictions it creates.

I doubt the Supreme Court will strike down McCain-Feingold, even if they rule in favor of Citizens United. But maybe they’ll chop away a good bit of its power. It’s a law which borders too closely on unconstitutionality for us to feel comfortable with it wielding a lot of power.

Some good news for free speech today: the Senate has used its oversight authority to bar the FCC from reconsidering the Fairness Doctrine.

While President Obama has publically opposed reinstating the arcane rule that required equal time on the airwaves for opposing political views, Republicans wanted to make sure the Democratic-controlled government didn’t recreate the law as an attempt to quiet conservative talk radio. For once, Rush Limbaugh was right about something.

With the wide variety of media sources and endless variety of opinions available on TV and the Internet, there is no conceivable reason we need the Fairness Doctrine. Free speech might be messy, but it’s a cornerstone of democracy. I’m glad the Senate made sure the FCC will stay out of the business of regulating political speech.

For me, it was the most compelling argument to vote for Barack Obama – We need to elect a Democrat to “undo the damage” of the Bush administration.

Although I agreed with the diagnosis, I could not concur with the treatment. The toxic side effects of Single Party Rule presented a greater risk than the potential benefit of curing the Bush/Cheney unitary executive disease. In particular, the prospect of the new President inheriting the expanded Bush/Cheney presidential power while his party held even larger majorities than enjoyed by George W Bush and the Republicans was particularly frightening. Those fears were confirmed last week, when Obama steamrolled a very bad stimulus bill over a neutered Republican party, handing future generations more debt and putting the economic future of the country at risk.

That said, I expected to enjoy a couple of civil liberty consolation prizes with the Obama victory. First and foremost, balance would be maintained in judicial appointments and on the Supreme Court, and second – Obama would indeed roll back some of the worst offenses of the Bush administration. While I still have high hopes for the first consolation prize, early indications are not promising for the second. Not promising at all.

I know it has only been a month, but Obama works fast. It is not too early to checkpoint how President Obama is progressing on “undoing the damage” of the Bush/Cheney Imperial Presidency. The most egregious offenses of the Bush/Cheney administration fall under the umbrella of expanding executive branch power at the expense of the legislative and judicial branches, with a commensurate erosion of constitutional protections. There are some positives. The executive order to close Guantanamo in a year or so is great news. The executive order on torture sounded great, as long as you ignore the loopholes. But on balance – So far… all is not so good.

The Obama administration supports Bush era invocation of state secrecy to protect rendition and torture.

The Obama administration supports Bush era state secrecy claims to deny torture victims their day in court.

The Obama administration supports Bush era state secrecy claims to protect executive orders for illegal wiretapping and domestic surveillance.

Out of fairness, I should point out that this last should not be a surprise. It is completely consistent with the July, 2008 version of Barack Obama who voted against the rule of law and in support of immunity for the Telecom companies that cooperated with illegal government wiretap requests. OTOH it is a complete flip-flop from the January 2008 version of Barack Obama who promised to support a filibuster to prevent granting immunity to Telecom companies.

The Obama administration opposes torture, but not all the time.

The Obama administration continues Bush era faith based initiatives undermining the principle of Separation of Church and State.

White House Political Office, Politicizing the White House Counsel, Executive Privilege – The more things change…

Other early items where the Obama administration appears to moving closer to the style and substance of the previous administration include: Obama continues the much reviled White House Political Office – former home of Karl Rove; Obama appointed a political hack to the office of the White House Counsel, further opening the administration to comparisons with the Bush/Rove White House and charges of politicizing the office; – and – as long as we are on the topic of Karl Rove; The Obama administration will apparently not challenge the constitutionally questionable Bush administration claims of “executive privilege” shielding Karl Rove from testimony before the legislature in the matter of U.S. Attorney General firings

There are more than a few liberals who have not hesitated to to call BS, most notably Glen Greenwald, as he takes to task those whose loyalty is not to principle but to a personality:

Greenwald’s analysis is instructive. It explains why so many on the left greet Obama’s support and active defense of the Bush/Cheney model of the unitary executive with a yawn. It is not the principle of checks, balances and constitutional protections that inform their view of the world. For some on the left, it is about blind loyalty to a leader and a party. From their perspective, the Bush/Cheney model of executive power is not a problem if Obama is in the White House. Apparently, with the ring of power in Barack Obama’s benevolent hands, the Bush/Cheney executive power will only be used for good. So – just put your trust in Barack – not in the rule of law – not in the Constitution – but in the man. These Obama supporters resemble nothing so much as the right-wing apologists for Bush administration excesses.

Greenwald says it best:

Under the current incarnation of One Party Rule, the Republicans are impotent in the face of Obama and his large Democratic majority. The only hope for any moderation of the power of this presidency, must come from principled Democratic legislators in Congress (Feingold, Feinstein, and Leahy are stepping up). The only hope for economic sanity, must come from Democratic fiscal conservatives like the few Democratic representatives in the House of Representatives that voted against stimulus porker.

It’s only been a month.

Obama still has plenty of time to correct course.

That is my (faint) Hopeâ„¢.

^{Excerpted from “Divided We Stand United We Fall“}

I’ve been pretty harsh on philosophical neo-conservatism over the last year or so. In fact, it’s safe to say that of all the various (actual) political philosophies that form a significant portion of our governing political coalitions, I have consistently held neo-conservatism in by far the most contempt.

And without a doubt, the basic tenets of neo-conservatism, with its emphasis on the spread of democracy as an end unto itself, are tenets with which I profoundly disagree. But it’s also worth remembering that neo-conservatism, at least in its most philosophical form, is very much concerned with a positive, idealistic worldview just as any other true political philosophy is. And while, just as other strains of conservatism and libertarianism, many prominent neo-conservatives have fallen under the spell of “talk radio dogmatism,” the actual philosophy of neo-conservatism itself – again much like other strains of conservatism and libertarianism – has deep intellectual roots.

Perhaps nothing provides a clearer example of the distinction between this “talk radio dogma” neo-conservatism and actual philosophical neo-conservatism than the reaction in conservative circles to the impending nomination of Leon Pannetta to head the CIA. As an outspoken critic of torture (aka “harsh interrogation techniques”) and the intelligence failures of the last 8 years who has no previous connection to the CIA, the Pannetta nomination has unsurprisingly drawn the praises of civil libertarians of all stripes – including Greenwald, Sullivan, Schwenkler, and Hilzoy.

What is, however, surprising is the way in which the pick has split the portions of the political Right that hold to a more-or-less neoconservative view of international relations. On the one hand, some of neo-conservatism’s biggest intellectual heavyweights, including Douglas Feith and Richard Perle, are almost completely supportive of the nomination – in spite of Panetta’s harsh criticism of policies that Feith and Perle either pushed or excused. The common thread for this group seems to be an acknowledgement of the failures of the last eight years, and a belief that those failures arose due to systemic, institutional problems within the Agency. To them, these problems can only be fixed by someone outside the Agency with strong managerial skills, and preferably, it would seem, a critic of the Agency. At base, this group recognizes that a neo-conservative agenda cannot succeed unless there is some sort of comprehensive reform of our intelligence services – and it is that idealistic (if, in my view, deeply flawed) neo-conservative agenda that remains their ultimate concern and goal.

But the GOP dogmatists, who do not understand the intellectual roots of the fundamentally neo-conservative foreign policy they advocate, have taken a vastly different tack.

Ed Morrissey, who is as close to an intellectually honest dogmatist as you will find:

Even the notion of “change” doesn’t apply here. Obama has no executive experience in government, and neither does Panetta, but Panetta hardly represents a breath of fresh air in Washington. He’s another Clinton-era retread, only in this case, put in charge of an organization about which he knows nothing. He’s there to exercise Obama’s political will and nothing more.

Similarly, Wizbang calls the pick the equivalent of the Bush decision to choose Mike Brown to head FEMA, while Ace of Spades says Panetta’s only qualification is “being a lifelong partisan hack.” And, of course, Michelle Malkin says “Another day, another clueless Clinton crony named to a top job for which he has no experience. The unqualified fish rots from the head down, after all. ”

Notably missing from any of the discussion amongst the dogmatists is an acknowledgement of the systemic problems faced by the CIA, whether it be in terms of the moral issues related to interrogation techniques or in terms of the embarassing intelligence failures in recent years.

Cross-posted at Publius Endures.

In one of the more, forgive me, torturous staffing processes, it looks like Barack Obama has finally settled on the last major appointment he had left to make, that of CIA director. Given that the Bush administration has done so much long-term, institutional damage to our intelligence superstructure, basic tenets of human rights and the rule of law, and the really nearly impossible to overstate damage done to the very idea of America itself, and almost all of that has fallen under the scope of the CIA at one point or another, bloggers like Glenn Greenwald, Andrew Sullivan, and other leading voices in the fight for not buying into the false choice of security over freedom, have been keeping a very close, very wary eye on what Obama was going to do here.

Remember that Obama’s first floated choice for CIA Director, John Brennan, had to withdraw his name from consideration due to a mostly blogosphere-induced backlash against his previous advocacy of Bush positions on wiretapping, torture, and the like. While it remains unclear how complicit Brennan actually was in any of that (probably not very, in truth), those of us hoping for a clear indication of new direction were happy to see him go.

But that left Obama in a difficult bind. For CIA director, you kind of need somebody who has been working at a high level in the intelligence community. But, given that that would have been under Bush’s tenure, that also would be someone who almost certainly, on some level, had a hand in the aforementioned abuses.

Obama appears to have squared this circle by bypassing it entirely, nominating instead a man with not one iota of intelligence experience–former Clinton White House Chief of Staff Leon Panetta.

NBC News has confirmed that President-elect Barack Obama has chosen former Clinton White House chief of staff Leon Panetta to run the CIA.

Panetta was a surprise pick for the post, with no experience in the intelligence world. An Obama transition official and another Democrat disclosed his nomination on a condition of anonymity since it was not yet public.

Panetta was director of the Office of Management and Budget and a longtime congressman from California.

If you have to make a quick trip to wikipedia, I don’t blame you.

However, despite the fact that he has no intelligence background, I find myself a bit optimistic about his appointment.

For one, it indicates that Obama is very serious about changing direction–he was responsive to the Brennan criticism, and in response he has gone out of his way to choose an outsider. A way, way outsider. As Andrew Sullivan notes, Panetta is clearly “significantly, detached from the torture regime and its apparatus in a way that anyone involved in the CIA in the last eight years would not be.” And as Glenn Greenwald adds, “it does seem clear that the Obama team was serious about avoiding anyone who had any connection at all to the Bush torture, surveillance and detention programs.”

For another, Panetta does have some thoughts on the germane issues of the post. Atrios uncovers a March op-ed by Panetta (and here’s a related one in the Washington Monthly) in which he more or less unequivocally condemns torture, wiretapping, and in general using fear as a justification for legality. It’s a thin record, to be sure, but at least it’s in the right direction.

And finally, what I think is thus far being missed, is the decision to choose not a spook, but a manager for the post. Panetta’s history is that of a human resources guy, a liason problem-solver. To that end, the smartest early take I’ve read yet on his appointment comes from Marc Ambinder. Panetta is there to clean house and, like much of what Obama does, to provide competent, pragmatic, and not-particular-ideologically driven leadership. In other words, like Obama himself, the hope seems to be that Panetta is being appointed to be the adult in the room at Langley, with the considerable added benefit of not having any particular baggage or loyalties himself.

Since nobody knows much about Panetta (at least not of the bloggers I read) and this is an entirely new role for him, it remains to be seen if he’ll prove effective or not; we can really only make generalized guesses. But as somebody who’s been watching this one decision closely, I’m cautiously optimistic.

I thought California’s Proposition 8 would fail and California would become the first state where the voters themselves actually voiced approval for gay marriage. Obviously, I was wrong.

Turns out the progressive coalition that swept Barack Obama into office is not so progressive, at least not on the issue that many on the left consider the seminal civil rights struggle of our time. So, what does this mean?

The easy answer is that we’re still a nation of bigots and over fifty percent of the electorate, even in liberal California, are intolerant fools. But considering that we just elected a black man president, the “intolerant” argument is, at best, imprecise. In fact, I think it misses the point entirely.

I don’t believe Prop. 8 passed because a majority of the people hate homosexuals or refuse to tolerate them. I think it passed because a significant number of the population didn’t “buy” that gay marriage is a civil rights issues.

The proposition had nothing to do with granting homosexuals voting rights, or allowing them to integrate the school system or even protecting them from workplace discrimination. The issue was the radical redefinition of marriage, of the state telling religious groups that their centuries old beliefs are invalid and that the state knows better than their God. To supporters of Prop 8, the issue wasn’t the civil rights of gays. It was the religious rights of those who do not want to be told how to practice their faith.

Personally, I support gay marriage quite fervently. But the Prop 8 passage has alerted me to the need to pay far more attention and give more respect to the opinions stated above. We cannot ramrod this measure through American society. If we want gay marriage to be accepted in our culture, we have to prove that the act would in no way infringe on religious liberty. Churches that do not recognize the holiness of gay marriage should in no way be obligated or coerced into performing or accepting such marriages — just as we would never expect a rabbi to marry Catholics or a priest to marry Muslims.

Gay marriage is a civil rights issue. But its implementation raises religious liberty issues. In a perfect world, we could completely separate the granting of the legal rights of partnership with the religious consecration of marriage. The state would issue “partnership” certificates. Religions would bestow marriage. But that’s a farfetched notion and not one we can reasonably pursue.

No, the solution we have now is the right one. But the approach is wrong. Gay marriage supporters should regroup, stop the cries of “intolerance!” and find a way to assuage the concerns of religious communities. Only then do I think we can avoid more disappointing results like the one experienced last Tuesday.

George Will has some advice for John McCain in his Washington Post column – “McCain’s Closing Argument”. He points out that the Palin selection was enough to get McCain back in the race, but will not be enough to carry him over the finish line:

“Palin is as bracing as an Arctic breeze and delightfully elicits the condescension of liberals whose enthusiasm for everyday middle-class Americans cannot survive an encounter with one. But the country’s romance with her will, as romances do, cool somewhat…”

Certainly, McCain is going to need an argument that will attract more moderates, centrists, independents, and libertarians to win. George Will has identified that argument:

“McCain should, therefore, enunciate a closing argument for his candidacy that goes to fundamentals of governance, concerning which the vice presidency is usually peripheral. His argument should assert the virtues of something that voters, judging by their behavior over time, prefer — divided government… Divided government compels compromises that curb each party’s excesses, especially both parties’ proclivities for excessive spending when unconstrained by an institution controlled by the other party. William Niskanen, chairman of the libertarian Cato Institute, notes that in the last 50 years, ”government spending has increased an average of only 1.73 percent annually during periods of divided government. This number more than triples, to 5.26 percent, for periods of unified government.”

An interesting argument. I am surprised we have not heard it before.

Reaction from the left and right blogosphere is… predictable.

From the left – BarbinMD at Daily Kos scoffs:

“George Will thinks that John McCain’s “closing argument” to elect him should be what a divided government would mean to the country. Seriously, that’s the only selling point for McCain that Will could come up with. You can almost feel the enthusiasm.”

From the right – Ed Morrissey considers Will’s divided government argument risky, fearing that it shows the white flag on congressional elections, but finally concurs:

“Will may be right in this case. It’s more likely that the Democrats will keep the House, and there’s almost no way they can lose the Senate, with 23 Republican seats up for grabs and only 13 seats for Democrats to defend. There is little doubt that one-party rule by Democrats will result in both the Fairness Doctrine and Card Check getting written into law. Both of them would severely undermine the American practice of freedom, one by silencing free speech on the airwaves, and the latter by eliminating the secret ballot in union organizing elections. Card Check is a blank check for a spigot of money that will float Democrats in elections for generations, the only reason for its existence. McCain needs to emphasize these two potential outcomes and cast himself as the last defense against these two destructive bills. It doesn’t have to be the only theme he uses, but it should be one of the arrows in the quiver.”

In related news, the most recent edition of “The Carnival of Divided Government“ – a periodic compilation of blog posts and punditry on the subject of Divided Government – has been posted at Divided We Stand – United We Fall .

^{CORRECTION: The quote “from the right” is actually from Ed Morrissey not Michelle Malkin as originally posted. I must have been under caffeinated this morning. I knew it sounded too reasonable for MM. Fixed now.}

Do we really think that this many people could be a threat to our national security?

From AFP:

A watch list of suspected and known terrorists, compiled by the US authorities, has ballooned and contains more than one million names, the American Civil Liberties Union said Monday.

The ACLU said it derived that figure from a Justice Department report on the FBI’s Terrorist Screening Center, which consolidates terrorist watch list information.

The Center “had over 700,000 names in its database as of April 2007 and that the list was growing by an average of over 20,000 records per month,” according to a report by the Justice Department Inspector General, the rights group said.

Now, the Transportation Security Administration contends that there are less than 450,000 people on it, but still…450,000? I guess that begs the question: what do you have to do to be put on this watch list?

Well…apparently not much…

Among those on the watch list are deceased people, such as former Iraqi dictator Saddam Hussein who was hanged in 2005, decorated war veterans, and US Senator Ted Kennedy, the ACLU said.

Simply absurd.

How are you feeling this morning? I’m not feeling great. I am a little unhappy about the news.

You might not have noticed, as this was only the third most important story yesterday. Based on television news coverage, the most important political story yesterday was Rev. Jesse Jackson caught making crude remarks about Obama on an open mike. The second most important story was John McCain joking about cigarette exports killing Iranians. The third most important story was our elected representatives voting to restrict 4th Amendment protections that have been afforded Americans since the founding of the country and the crafting of the Bill of Rights.

Who cares? After all, what did the founding fathers know about the need to protect individual civil liberties against the overreach of power by a unitary executive? Clearly our Congress and President, and the two senators who want to be our next President know better than the founders what civil protections we really need. So protections that have been in place for over two hundred years are now less than they were. Activities by our government to eavesdrop on conversations of Americans that were illegal yesterday, are legal today (or as soon as GWB signs it into law).

I am not going to belabor this. We have beat this to death at Donklephant in previous posts here, here and here. Just one point – When smart people on the right, left, and academia agree that this is a very bad bill that erodes our freedom and constitutional protections, it does not mean this is a good compromise. It means this is a very bad bill that erodes our freedom and constitutional protections.

No I’m not feeling great. I feel about the way the Senator Russ Feingold looks in this interview on MSNBC’s Coutdown yesterday, where he says:

“This is a sad moment, it really is a black mark, not only on Democrats, but on the Congress, and the history of the United States. This is one of the greatest assaults on the Constitution in the history of our country.”- Russ Feingold

C’mon Russ! Lighten up! It’s only the Constitution and the Bill of Rights. Sheesh….

[OK. I give up. There is supposed to be an MSNBC Video Embedded here, but I can't get it to embed. You'll have to go HERE to see the video.]

Some thoughts on this interview. Feingold expresses a hope that a future Congress will take this up and restore our Fourth Amendment protections. What do you think the likelihood that any President or Congress will voluntarily reopen this political can of worms?

I actually believe it will happen, but not without a powerful catalyst. It will happen only after the inevitable abuse of these new powers are revealed to the American people.

Why inevitable? Because every single expansion of government power over citizens is ultimately abused by those entrusted with that power. I don’t know when that will happen, but I know it will happen.

Outrage over executive branch abuse of eavesdropping and domestic surveillance was the reason for the original FISA legislation in 1978. When FISA was modified by the Patriot Act, the loosened restrictions were immediately abused by the FBI, and that abuse continued for years. With these even looser restrictions, there will be more abuse. It is only a question of time, a question of how the abuse will be revealed and a question of how badly and how many Americans must be hurt before enough outraged Americans force Congress to act. Perhaps the abuse will happen under President Obama. Perhaps the abuse will happen under President McCain. Perhaps it will happen under a President four eight or twelve years from now. But it will happen.

It is also interesting that Feingold declined to answer Maddow’s question about the real liklihood of an Obama presidency pursuing criminal liability against the Telcos and administration officials that broke the law. This, as you may recall, was Obama’s CYA fig leaf rationalization for explicitly breaking his promise to filibuster any FISA provision that included Telecom immunity. Feingold did not decline to answer because he does not know the answer. He knows. He knows that Obama is being disingenuous and there is no possibility of a criminal prosecution for law-breaking activity that Congress just made legal.

No, I don’t feel 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 Americans.

^{UPDATED: Found some more links for the next round of opposition to this “assault on the Constitution”, and have edited the last paragraph to reflect the same.}

Contributions? Instead of the candidates, I’ll make contributions to organizations like the Strange Bedfellows Alliance, a progressive / libertarian alliance that will target legislators that voted to reduce my freedoms. Since the Executive and Legislative branch have no respect for the Constitution, I can only hope the Judicial branch will. The ACLU and Electronic Freedom Foundation are going to test the constitutionality of this law in the courts. I’ve never contributed to the ACLU before, but I will now and I will get behind this program and suggest you do also.

There. I feel a little better, now.

I have expended more than a few words criticizing Keith Olbermann 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 position on FISA (sort of) in a “Special Comment“, so it is only fair to include it here.

But first, for context, a brief outline of the story so far:

• Barack Obama expresses strong opposition to the Bush FISA executive eavesdropping power expansion with the Telco Immunity provision.
• Keith Olbermann broadcasts a “Special Comment” calling the FISA bill with Telco Immunity fascist.
• Obama flip-flops announcing support for virtually identical FISA “compromise” with Telco Immunity.
• Olbermann and Jonathon Alter praise Obama for “not cowering to the left” on the FISA compromise.
• Glenn Greenwald calls out Olbermann on his hypocritical coverage of Obama.
• Keith Olbermann says he did not read Greenwald, but responds anyway.
• Greenwald does read Olbermann’s post and dismantles his response.
• Olberman says, “Lets change the subject.“
• Olbermann broadcasts this “Special Comment” on Monday saying “Senator Obama wants his cake and eat it too”:

Frankly, I found the Olbermann comment to be somewhat incoherent, as he felt compelled to wrap extensive verbal caveats while inserting two or three shots at Republicans for every mild criticism of the Obama flip-flop. That said, he explicitly calls for Obama to take the “second chance” to do the right thing and either – join the opposition planning to filibuster the bill -or- explicitly state that an Obama administration will pursue a criminal prosecution of the Bush administration and Telco companies for violations of the original FISA law.

Olbermann makes much of the fact that the bill – (both the versions that Obama opposes and supports) only provides immunity from civil prosecution. Greenwald maintains that the possibility of criminal prosecution under this bill to be a fantasy, and remains focused on the bigger issue of stopping the expansion of executive power. In any case, I fully expect Obama to embrace neither of Olbermann’s suggestions. Having already flip-flopped once on the issue, it just would not be politic for him to flop-flip back.

More importantly, Olbermann’s commentary and the Olbermann/Greenwald debate has helped keep a spotlight on this important issue and the impending vote. This has all been made possible because a few Senators like Feingold and Dodd (and unlike Obama) were willing to show real leadership on this issue and keep principle ahead of politics. They succeeded in delaying the the FISA vote until after the Independence Day holiday, allowing time for opposition to build. Stopping or modifying the bill still seems unlikely, but this is politics, and there is no telling what might happen. Who knows? Our elected representatives might even decide to defend and protect the Constitution.