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Will Democrats Restore Our Liberties Stolen in the Bush Era?
By Ari Melber
AlterNet
November 13, 2007
Repealing the Patriot Act, ending warrantless wiretapping, restoring habeas corpus - have Democratic leaders figured out that these are winning issues in the aftermath of Bush's power grab? Does the Democratic Party still stand for human rights and civil liberties? Yes and no. Let me explain: It's clear that most rank-and-file Democrats strongly support constitutional rights, from grizzled ACLU liberals to Iowa Caucus voters to MoveOn's web enthusiasts, and the issue regularly competes with Iraq as a top priority for party activists. Yet Democratic leaders are much more ambivalent. The Democratic Congress buckled in its largest civil liberties clash with the White House, passing legislation to expand warrantless spying in August. (The next test comes Thursday, when the Judiciary Committee reviews an extension to the bill, The FISA Amendments Act.) And while Democratic presidential contenders are better - they all opposed the surveillance bill and the administration's unconstitutional Military Commissions Act - few have used the full power of their office to advocate constitutional rights. So as the Bush era of radical secrecy, unitary executive power and openly unconstitutional leadership draws to a close, the Democrats are still debating how to restore rights and liberties while waging a more effective battle against terrorists.
I recently reviewed the policies of several presidential candidates on these issues for Alternet's Rights and Liberties series. So here's an attempt to cover part of that landscape, and propose a few ideas for constitutional activism within the ongoing Democratic debate.
In the presidential field, I think Chris Dodd has outlined the most thorough civil liberties platform. The 26-year Senate veteran is the author of major legislation to restore habeas corpus and repeal the Military Commission Act. He also led the congressional battle against retroactive immunity for telephone companies that illegally assisted the N.S.A.'s domestic surveillance. Joe Biden has staked out a leadership role on civil liberties as well. He was the first presidential candidate to back Dodd's pledge to filibuster Bush's surveillance bill - later Barack Obama and Hillary Clinton followed suit - and he was the first Democrat to introduce legislation reversing the controversial July executive order authorizing "enhanced interrogation techniques." Biden's legislation, "The National Security with Justice Act," would also close U.S. government "black sites," require that all interrogations comply with the Army Field Manual and provide oversight to constrain the administration's use of "rendition" (the practice of outsourcing torture to other countries). Yet the bill does not have a single Senate co-sponsor - an indication of how reticent Democratic leaders are in this area. (Dennis Kuncinich and Ron Paul have also spoken out forcefully about restoring the Constitution.)
The remaining Democratic front-runners do not prioritize civil liberties much on the campaign trail, though they do advocate constitutional rights in contrast to the Bush administration. Obama, Clinton and John Edwards each say that if elected, for example, they will restore habeas corpus, close Guantanamo and halt illegal domestic spying. Obama and Clinton have both cosponsored stand-alone legislation to restore habeas corpus. And unlike Clinton, Obama has signed on to Dodd's more comprehensive bill, the "Restoring the Constitution Act," which has 13 co-sponsors. Edwards, a former senator, has not specifically spoken out on the bill, though he has endorsed several of its proponents in several addresses challenging the entire doctrine of a "Global War on Terror." Clinton also categorically ruled out the use of torture during a presidential debate in September, withdrawing her previous position that torture could be justified in a ticking time-bomb scenario. Yet across the country, Democratic voters support a constitutional rights agenda much more forcefully than their elected leaders. According to survey that Belden Russonello & Stewart conducted this September:
81 percent of Democrats oppose torture, 70 percent favor restoring of habeas corpus, and 69 percent want to close Guantanamo.
Then check out Iowa Democrats:
94 percent oppose torture and 88 percent support for habeas corpus.These policies would not alienate swing voters on this score, either. The national survey found Independents had similar views, including higher support for habeas corpus (80 percent) and opposition to torture (87 percent) than Democrats across the country.
Rule of Law
It will obviously take more than these (important) measures to restore the rule of law in the post-Bush era. Though members of Congress rarely admit it, and the public may not appreciate it, the most significant rejections of President Bush's counterterror policies have actually come from the courts - not from Congress or elections. The conservative Supreme Court has twice rejected Bush's detention policies at Guantanamo in the landmark Rasul and Hamdan decisions. Lower federal courts have also rebuffed executive programs to detain a U.S. citizen without trial and spy on Americans without the required warrants.Yet Bush has repeatedly responded by maligning court oversight as a barrier to national security and attempting to circumvent the rulings. Congress has reinforced that approach, even after the Democrats took control this year, by passing legislation to validate surveillance rebuffed by the courts; granting immunity to potential war criminals and contractors in Iraq; and stripping habeas corpus in the Military Commissions Act, which responded to the Hamdan decision in 2006.
These congressional acts are counterintuitive, under traditional models of American government, because Congress is complicit in the reduction of its own power. The founders envisioned each branch of government asserting itself by checking the others - "ambition must be made to counteract ambition," as James Madison declared in the Federalist Papers. Under both Republican and Democratic control, however, Congress has let its power ebb - and assisted executive encroachments on the judicial branch. So now I think civil libertarians must actually move on two fronts, advocating policy priorities (like habeas corpus) and pressing politicians to address vital - but vague - notions of restoring the proper constitutional separation of powers.
The next president should work with Congress to strengthen the branch of government that makes the law work: the courts. Civil libertarians can press candidates to outline their specific policies to strengthen judicial oversight - including potential misconduct in the next White House. The public is also entitled to know how a candidate would select judges with fidelity to the law - not deference to the executive branch.
Another sleeper judicial issue for the campaign agenda is the administration's expansion of the "state secrets privilege," often referred to as a "nuclear" doctrine in government circles. The Bush administration has shut down scores of important cases by radically expanding the state secrets privilege, a Cold War doctrine allowing the executive to completely preempt a case by asserting that state secrets are jeopardized. Thus cases die without judges ever reviewing the underlying claims, or descriptions of the alleged secrets. (Here conservatives have swapped "judicial activism" for judicial torpor.)
The issue sounds obscure now, but if evangelical activists could popularize their fight over "strict constructionist judges," civil libertarians can show peace and human rights activists how this doctrine has prevented accountability for numerous allegations of torture, rendition, detention and spying - fortifying a model of executive power that is remarkably unaccountable to the public. There is a common theme in all of these measures. They affirm American values and enjoy wide support among Democratic and independent voters, but remain largely neglected by Democratic leaders.
Platform Activism
Of course, this is an old fissure within the party. The 2000 Democratic Platform, for example, was notable for its prescient emphasis on how terrorism challenges an open society. The platform proposed to "disrupt terrorist networks" before they attack while protecting the "civil liberties of all Americans" and securing "the rights of the accused, even under the unusual circumstances of the investigation of threats to our national security." The document even singled out Osama Bin Laden as a key target for the United States, while the Republicans' 2000 platform does not mention him.And one way to advance these issues in 2008, no matter who wins the Democratic nomination, is for activists to push these constitutional issues in the party platform. Before cynics roll their eyes, let's remember that national platforms have historically been important venues for setting policy in both political parties. (The civil rights plank in the Democrats' 1948 platform was so influential it literally fractured the party.)
Yes, today platform committees are more staid, usually rubber-stamping a preordained document that hews to the nominee's agenda. The overriding concern is often avoiding conflicts or positions that might hinder the nominee's election. But I don't think delegates are not inherently pliable. (They are elected by activists at state party conventions or appointed by the national party, and can run on any issue they choose.) Now, they can use the Internet to recruit like-minded activists and coordinate an agenda long before official platform meetings. (The Democrats and Republicans have already posted information and deadlines about running for delegate.)
I ran this idea by Andrei Cherny, who led the drafting of the Democratic Platform in 2000. He thinks both Iraq and constitutional rights would be the top flashpoints in any platform debates, and he emphasized:
If there were issues within the Democratic Party that rose to the level that a floor fight at the convention became a reality, I think that would be enormously helpful to the party. [Activists should] "run for delegate, get on the platform committee, work through state parties to actually be able to influence the document.In the end, we need to find a way to show Democratic leaders what their constituents - and many other Americans - have long believed. The United States can wage a battle against its enemies without sacrificing freedom, justice and democracy at home.
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