Res Judicata: Where Are the Civil Libertarians?

December 26th, 2011 at 11:09 am | 28 Comments |

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During the 2008 campaign one of Barack Obama‘s major themes was attacking the Bush anti-terror policies: warrantless snooping by the N.S.A., renditions, targeted assassinations, Guantanamo Bay detentions, enhanced interrogation techniques, military tribunals, as unconstitutional.  He promised to close Guantanamo on his first day in office and end all of the other policies as soon as militarily feasible.

Yet Obama has only maintained the anti-terror policies of George W. Bush’s second term. The use of drones to carry out targeted assassinations has also drastically increased. Yet professed Civil Libertarians seem much quieter about this than they did during the Bush years.

Recall that the ACLU believes in an absolutist interpretation of some parts of the Bill of Rights, particularly, the First amendment (freedom of speech, religion and assembly) and the Fifth  amendment (guaranteeing the right to “due process”). Under the ACLU  interpretation of the Constitution, “individual rights” always trump the rights of the U.S. to carry out national security objectives. So prisoners of war must be given access to the civilian courts to bring habeas corpus proceedings for their release, the President cannot use the NSA to conduct warrantless searches of citizens’ emails and phone calls without a hearing before a federal judge where the burden is always on the government to prove national security will be damaged irreparably if an individual’s rights are infringed upon.

I don’t believe that the founders intended the Bill of Rights to apply in a way that inhibits the President’s wartime powers. Other Presidents did not think this either. President Wilson ordered his Attorney General to conduct mass warrantless searches and arrests of opponents of World War I and FDR decreed that a handful  of German soldiers – one of them a US citizen –  captured on U.S. soil would be tried in a military court where they were not given any civilian procedural rights.  They were executed, and neither president faced impeachment hearings.

Since 9/11, however, some civil liberties advocates have demanded that the country depart from these precedents in favor of a new expansive definition of wartime civil liberties in which the rights of individuals accused would take precedence over national defense.

From this personally I conclude that the ACLU’s view of the Bill of Rights is antihistorical and politically inspired.

During the 2008 campaign, candidate Obama expressed agreement with these civil liberties advocates. As soon Obama assumed office, however, he found that Bush’s methods of fighting terrorism wer, apparently, necessary.  He even cranked up the targeted assassinations to several a day. There is no due process here.  I’m all in favor of these killings, (provided the government can carry out such a policy judiciously) but where is the ACLU?  Why are they not calling Obama and Eric Holder Constitution shredders? Where are the “civil libertarians” in the media and the academy denouncing Obama?  The U.S. drone which crashed in Iran two weeks ago was not authorized by the post 9/11 declaration of war on Afghanistan or the 2003 authorization of war against Iraq.  If this had occurred under a Republican president, I imagine the Democratic opposition would demand hearings.

There was some talk last year about an ACLU-type opponent emerging in the Democratic primaries.  But that never materialized, probably because the public at large is not actually outraged by these supposed unconstitutional policies, and because Democrats will only show significant outraged when the actions are committed by a Republican.

Recent Posts by Howard Foster



28 Comments so far ↓

  • dante

    And Republicans are only outraged about these things when it’s a Democratic president doing it (see: Libertarians, Tea Partiers and Ron Paul’s popularity with regards to warrantless wiretaps). What’s notable is that attempts by Obama to do things such as close Guantanamo or to offer suspects captured here in the US their due process has been blocked by Republicans. Remember the Republicans blocking the effort to try terrorism suspects in NY? Notice how the most recent defense bill blocks the administration from spending ANY money to house terror suspects here in the US?

    So why would the ACLU be targeting Obama again?

  • Rabiner

    “Since 9/11, however, some civil liberties advocates have demanded that the country depart from these precedents in favor of a new expansive definition of wartime civil liberties in which the rights of individuals accused would take precedence over national defense.”

    You can’t compare WW1 and WW2 to the War on Terror since the War on Terror isn’t a war at all in the eyes of the Constitution since Congress never declared war.

    “From this personally I conclude that the ACLU’s view of the Bill of Rights is antihistorical and politically inspired.”

    First off, the ACLU is apolitical. They defend anyone who has a case regardless on if you’re a Nazi group wanting to walk down a Jewish neighborhood, a terror suspect being denied habius or atheists who don’t want religious symbols on public land. Secondly since there is no declaration of war for the War on Terror it is you who is anti-historical and not the ACLU.

    “The U.S. drone which crashed in Iran two weeks ago was not authorized by the post 9/11 declaration of war on Afghanistan or the 2003 authorization of war against Iraq.”

    The drone seems to be used for spying which I’m pretty sure isn’t covered by declarations of war anyways.

    “There was some talk last year about an ACLU-type opponent emerging in the Democratic primaries. But that never materialized, probably because the public at large is not actually outraged by these supposed unconstitutional policies, and because Democrats will only show significant outraged when the actions are committed by a Republican.”

    First off the ACLU type presidential candidate is Ron Paul (who I think is great on civil liberties but nuts on other policies) and secondly I actually did protest the NDAA and specifically the McCain-Levin amendment to that bill.

    On the last point of why Bush was worse than Obama on civil liberties is a pretty obvious one: torture.

    • Nanotek

      “On the last point of why Bush was worse than Obama on civil liberties is a pretty obvious one: torture.”

      + 1

  • Graychin

    Some Constitutional guarantees (e.g. habeas corpus) are explicitly subject to suspension during wartime. Both the Third and Fifth Amendments contain certain exceptions for wartime. It is clear that the Constitutional Convention was aware of the need for certain exceptions to civil liberties during wartime.

    From this personally I conclude that YOUR view of the Bill of Rights is antihistorical and politically inspired.

    The precedent of previous presidents who found the Constitution to be inconvenient does not change the meaning of the plain words found therein.

  • busboy33

    Where are the Civil Libertarians? Pretty pissed at Obama. Arguably the biggest issue for Obama with the Left is his failure to close Gitmo and its associated policies (indefinite detention, etc.). A quick read of any deep-Left blog (Firedoglake.com, for example) makes this clear.

    I know you really want to point to something on the Left and triumphantly declare “hypocrites!”, but this ain’t it.

  • jakester

    This is a little off topic, but I can’t believe that those drones don’t have a self destruct mechanism that can also be remotely triggered. Freaking idiots

    • Traveler

      Frankly I am very surprised at how little press this whole story got. I would love to know how it happened. You are right, why there was not an override control in a completely different OS and hardware? This was a major loss, and I am pretty sure heads will have rolled.

      • jakester

        I mean if the drone goes missing, blow it up, or at least cause some sort of fire that will melt all the valuable electronics & motor

    • Traveler

      (delete- post posted but site didnt say so…)

  • Nanotek

    “I don’t believe that the founders intended the Bill of Rights to apply in a way that inhibits the President’s wartime powers…”

    that’s odd, I missed the war-time exception to the Bill of Rights …

    I don’t believe that the founders intended the President’s wartime powers to apply in a way that inhibits the Bill of Rights

    “From this personally I conclude that the ACLU’s view of the Bill of Rights is antihistorical and politically inspired.”

    as compared to yours, no doubt

    • Houndentenor

      I don’t think the Founders meant that either. Actually they didn’t mean for the executive branch to be nearly as powerful as it is today.

  • balconesfault

    If you go to the ACLU “Issues” page, their number 1 issue is “Keep America Safe and Free”.

    http://www.aclu.org/keep-america-safe-free

    If you read their statement, it concludes:

    Establishing a New Normal (2010 resource): In the 18 months since the issuance of those executive orders, the administration’s record on issues related to civil liberties and national security has been, at best, mixed. Indeed, on a range of issues including accountability for torture, detention of terrorism suspects, and use of lethal force against civilians, there is a very real danger that the Obama administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during the Bush administration. There is a real danger, in other words, that the Obama administration will preside over the creation of a “new normal.”

    Oh – and surprise surprise – Howard Foster still doesn’t do basic research before shooting his mouth off. Can we hear again about the building lease for his law firm that he apparently didn’t read before signing?

    • JohnMcC

      You represented my thought on this Posting very well, Mr Balconesfault. An actual conversation about the (so-called) Patriot Act and general security issues in our present electronic/digital/connected world and how to maximize both liberty and security would be welcome. It is sad but obvious that no (so-called) conservative is prepared to participate.

    • Reflection Ephemeral

      I’d love to know exactly how Foster’s brain worked through all this before he typed it down and hit “post.” “I know absolutely nothing about how the civil liberties community has responded to this issue. Because the libruls control the media, this ipso facto means, de jure, that the ACLU has said nothing about it, res ipsa locquitor! Eureka!” *Types out column*.

      I mean, maybe the ACLU is right, maybe they’re wrong, but one would hope that a “columnist” would make the effort to ascertain whether they have a position, and maybe even what that position is, before typing out a few paragraphs calling them hypocrites. Oh well.

      As to their “ahistorical” view of civil liberties, everyone’s views can accurately described that way. If you think that the First Amendment imposes any judicially enforceable bounds whatsoever on laws that restrict permissable speech, your view is ahistorical. The SC never applied the First Amendment at all til WWI era, and didn’t give it any teeth at all until later still. Our entire view of law is wildly different from that of previous eras.

  • Houndentenor

    Further proof that the writer doesn’t know any real liberals, only moderates who, from his far right perspective, he perceives to be leftists.

    I know plenty of liberals and they are all pissed at Obama having continued the wars this long. I’m more of a pragmatists and knew going in that we’d be stuck in Iraq and Afghanistan for years and years, which is the main reason I wasn’t too keen on invading Iraq in the first place. I’m not crazy about how Obama has dealt with some aspects of the Al Qaeda threat, but under his leadership we have eliminated many leaders of that organization and took out Osama bin Laden. I’m not a hard-liner or a purist. I’ll take the half full glass over the empty one.

    As to why there are no challengers, perhaps Democrats have finally learned the lesson of 1968 and 1980 (and 1992) that a challenge from your own party for re-election dooms you to a loss in November. Better Obama and a few things they don’t like than a Republican and an invasion of Iran in 2013.

    • balconesfault

      As to why there are no challengers, perhaps Democrats have finally learned the lesson of 1968 and 1980 (and 1992) that a challenge from your own party for re-election dooms you to a loss in November.

      That, and the awareness that with the current Congress, a lot of what Obama is getting is as good as the left is going to get.

      For example – Obama at least TRIED to close Gitmo. But Congress, via their power of the purse, basically made that impossible – to close Guantanamo Obama was going to have to release all the detainees, since Congress wasn’t going to fund them being put elsewhere. And that was, sadly, a bipartisan effort.

      Obama ramped up the campaign in Afghanistan – but then that’s what he campaigned on doing. I’m not going to ding him on that one. He pulled troops out of Iraq per the status of forces agreement he was left with. Again – I’m not going to ding him there.

      He signed off on the indefinite detention language included in the most recent Defense Authorization … I blame Congress on this, since I don’t think the Commander in Chief could have practically defunded the military right now.

      I do blame him for re-signing the Patriot Act, and I think his use of drone strikes is in contradiction to his language, even if they have been tremendously effective.

      Would another Pres have vetoed the Patriot Act? It passed the House and Senate with easily enough votes to override a veto. So the question, again, is likely moot.

      • Houndentenor

        I can’t speak for anyone else, but I expect a President to make decisions based on the current situation and not be straight-jacketed by a campaign promise when things were different. for example, even though McCain said he would not go into Pakistan without the government’s knowledge and consent to get bin Laden, I don’t believe that given the situation presented this year he wouldn’t have made the exact same call that Obama did. There’s no way to know, of course, but things are different when you are the one there making the decision. (It’s also possible that he would have ignored getting bin Laden like the Bush administration did and we’d already be in Iran by now, but again, there’s no way to know that for sure.)

  • medinnus

    You know, Howard… its bloody amazing. You clearly write for FF, but you don’t actually read the forums.

    If you did you would note that even in a political microcosm such as FF, there are several posters who have continually slammed Obama for his continuation of the Bush “Imperial Presidency” powers.

    On a national level, Glenn Greenwald was an outspoken proponent of civil liberties, and has continued unrelentingly his attacks on the Obama administration for the same things.

  • andydp

    Recall that the ACLU believes in an absolutist interpretation of some parts of the Bill of Rights, particularly, the First amendment (freedom of speech, religion and assembly) and the Fifth amendment (guaranteeing the right to “due process”).

    Counselor, your thoughts on the NRA’s “absolutist interpretation” of the 2nd Amendment please ? My response to this has always been if someone does not stand up for the rights of the dirtbags, pretty soon we’ll all be the dirtbags.

    Under the ACLU interpretation of the Constitution, “individual rights” always trump the rights of the U.S. to carry out national security objectives.

    As we all know the government always looks after individual rights… and “never abuses” its powers. This country is a country of laws. I’m sorry you don’t like those “pesky Coinstitutional ones”. That’s why we’re not shooting protestors like in Syria… Didn’t the SCOTUS keep shooting down the Bush Administration’s attempts at doing what you’re advocating ?

    So prisoners of war must be given access to the civilian courts to bring habeas corpus proceedings for their release,

    Counselor, the Guantanamo people are not POW’s they are “detainees”. There is a VERY major difference as outlined in the “quaint” Geneva Convention:

    Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention. Furthermore, “There is no intermediate status; nobody in enemy hands can be outside the law,”[4] because in the opinion of the ICRC, “If civilians directly engage in hostilities, they are considered ‘unlawful’ or ‘unprivileged’ combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action”.[1][5]

    The President cannot use the NSA to conduct warrantless searches of citizens’ emails and phone calls without a hearing before a federal judge where the burden is always on the government to prove national security will be damaged irreparably if an individual’s rights are infringed upon.

    So you would have NO PROBLEM if the NSA just decided to intercept conversations between you and your Arab client and gave the info to your opponent… As a lawyer you might be aware of the FISA Act which does protect your rights. The FISA Court has traditionally approved about 90% of the wiretap requests.

    Really sir, you’re an agent of the court and yet you manage to have three straight pap pieces that show no viable research. Maybe you should assign your paralegal to do some research on the internet before you put your thoughts here.

  • Kevin B

    Here’s something I’ve come to understand after watching and participating in several presidential elections, and the subsequent presidencies.

    Anything a candidate promises to do on “Day One” that requires the participation of other branches or levels of government is a pathetic, pandering, naive, campaign promise that shows the candidate is woefully unprepared for the job of POTUS.

    It’s not an automatic disqualifier, though, since no one alive is prepared for that job.

  • F_Grey_Parker

    Mr. Foster, you wrote:

    “There was some talk last year about an ACLU-type opponent emerging in the Democratic primaries. But that never materialized, probably because the public at large is not actually outraged by these supposed unconstitutional policies, and because Democrats will only show significant outraged when the actions are committed by a Republican.”

    No. We are outraged and rightfully so. But, we apparently have two choices:

    A. We can undermine this President and risk the ascension of a potentially psychopathic, narcissistic torturer to the most powerful office on Earth, or

    B. We can hold our noses and prevent that from happening.

  • valkayec

    There’s lots of rage on the left. Apparently almost half of Ron Paul’s supporters are from the left…because he’s promised to get the country out of the wars and stop interfering in other countries. In every blog in every publication, supporters of Paul echo the same thing: no more war; no more detention; no more Patriot Act; no more violations of civil liberties. Also, Paul is gaining a majority of military votes.

    Mr. Foster, does any of this mean anything to you?

  • Baron Siegfried

    One can stand for anything. Obama stood / stands for a great many things, but what you can get done is what defines politics, it being the art of the possible. Personally, I think Obama has done quite well given the conditions facing him at his inauguration and the ceaseless opposition from a party bent on economic ruin so they can lay the blame for it on him.

    However, I can see Paul simply gridlocking everything . . . if you think the republican party is fractured NOW, oh, lord, the resulting four years could render up a half dozen Shakespearean plays and could stress the system badly enough to break it.

    Please remember that Julius Caesar was always careful to get senatorial approval of his acts and offices, as did Octavian and all of his successors, even Claudius. The transition from republic to imperial monarchy was done within the law, by a cowed and pliant (not to mention war-weary) senatorial class whittled down through purges. If things get bad enough, don’t think that something similar couldn’t happen here.

  • LFC

    I always find it interesting when somebody tries to post partisan nonsense on this site. There are simply too many smart and informed people who comment, and they really get torn to shreds. If Howie was in debate class with this drivel against the people who pointed out what has ACTUALLY occurred, he’d be crossing fingers and toes that he’d scrape by with a D.

    Maybe David needs a new slogan. How about “FrumForum – Lightweights Need Not Apply.”

  • think4yourself

    I’m late to this thread and all the good points have been taken, but it’s worth a re-hash.

    ACLU – “American Civil Liberties Union” – you expect that they should be working for the rights of the Gov’t?

    “Since 9/11, however, some civil liberties advocates have demanded that the country depart from these precedents in favor of a new expansive definition of wartime civil liberties in which the rights of individuals accused would take precedence over national defense.

    From this personally I conclude that the ACLU’s view of the Bill of Rights is antihistorical and politically inspired.”

    I quick review of the ACLU website showed that is formation was due to the Presidential over-reach of Woodrow Wilson. – “Among the ACLU’s proudest moments are those in which it has come to the defense of civil liberties in times of national crisis.

    That defense began in the early part of the 20th century, in response to the massive suppression of freedom of speech and of the press by President Woodrow Wilson during World War I” http://www.aclu.org/national-security/aclu-history-defending-liberty-times-national-crisis

    Howard, please do a better research job before posting, particularly when your posting is partisan posturing. The ACLU is a liberal-leaning organization that supports individual rights against those who oppress individual rights (governments, corporations, etc.). You expect them to be any different? How come you’re not taking Conservative Civil Libertarians to task?

    Now to a personal viewpoint. I thought the provisions of the Patriot Act were governmental overreach and breach of our civil liberties. As was the definition of “Enemy Combatants” and an endless state of war (as was expanding the definition of enhanced interrogation). The blame for all of these fall squarely on GWB.

    I have less of a problem with drone killings of people who are hiding in territories (parts of Pakistan, Yemen, etc.) where there is no rule of law these are havens of individuals actively looking to kill Americans (I feel the same way about Somali pirates). This is about defending against a clear and present danger to the US and its citizens.

    Candidate Obama made promises to Progressives that he either could not or would not keep once in office. I’m not happy about that, but do understand it. I wish that he would bring enemy combatants to trial in civilian courts and on American soil, but it was almost impossible politically and would cost too much as it related to other priorities (the US economy). I wish that there was more oversight on wiretapping, and I’m concerned about it – but I’m less concerned that this president is abusing that then I was about the previous one, or about any GOP president (I could be naive about that).

    Foster argues that Civil Libertarians (meaning Liberals, not Libertarians) have dropped the ball. It’s a ball that Foster doesn’t care if it’s dropped or not, but he’s still calling them on it. Perhaps he should argue for something he is for, rather than try and make crap up to make Liberals look bad. Fox News already does that.

  • baw1064

    If Obama were to actually take any of the positions that Foster is calling him on, he would promptly be accused of “palling around with terrorists” by all but one of the Republican candidates.

    This is a legitimate criticism that Obama hasn’t taken a stronger position on civil liberties…but after the experience of 2001-08, the Republicans lack standing to make that complaint (to make a legal analogy).