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The Democratic Party Joins The GOP In Abandoning Civil Liberties


In this Cato Institute Daily Podcast, Julian Sanchez discusses the extent to which the modern Democratic Party has largely abandoned the idea of protecting civil liberties:

On the same point, Adam Serwer points out the extent to which Democrats have abandoned civil liberties in a wide variety of areas:

Warrantless Surveillance/PATRIOT Act

2008: “We support constitutional protections and judicial oversight on any surveillance program involving Americans. We will review the current Administration’s warrantless wiretapping program. We reject illegal wiretapping of American citizens, wherever they live. We reject the use of national security letters to spy on citizens who are not suspected of a crime. We reject the tracking of citizens who do nothing more than protest a misguided war…We will revisit the Patriot Act and overturn unconstitutional executive decisions issued during the past eight years.”

2012: The platform is silent on this issue. This isn’t surprising since, at the urging of the Obama administration, congressional Democrats passed up the opportunity to reform the PATRIOT Act when they had a majority in both houses of Congress.

(…)

Racial Profiling in Fighting Terrorism

2008: “[W]e will ensure that law-abiding Americans of any origin, including Arab-Americans and Muslim-Americans, do not become the scapegoats of national security fears.”

2012: Nothing. The Obama administration has in fact retained the FBI’s Bush-era guidelinesallowing race or religion to play some role in investigations.

Torture

2008: “We reject torture.”

2012: “Advancing our interests may involve new actions and policies to confront threats like terrorism, but the President and the Democratic Party believe these practices must always be in line with our Constitution, preserve our people’s privacy and civil liberties, and withstand the checks and balances that have served us so well. That is why the President banned torture without exception in his first week in office.” Despite Obama’s executive order banning torture, Americans who allege they have been detained abroad by foreign governments at the United States’ request say they have been abused while in custody. It does not appear as though anyone will face charges over the Bush administration’s torture program, including those who went beyond its legal guidelines.

What a difference when the guy in charge is from your own party, eh?

To all of this, of course, we could add the extent to which President Obama has not only continued the Bush Administration’s policies with regard to the War On Terror, but he has expanded upon them significantly. At the top of the list, of course, is the President’s decision to assassinate an American citizen without any due process and, indeed, while blocking any efforts by family members of that individual to require the Administration to present evidence in Court justifying a death sentence without trial. The President has also expanded the Bush Administration practice of using the Constitutionally suspect “states secrets” document to prevent any judicial review of its actions in areas such as warrantless wiretapping. As Serwer noted, he failed to make any effort to amend the PATRIOT Act tone down it’s more unfortunate provisions. Finally, just last week, the President’s Justice Department declined to prosecute two CIA agents involved in the torture of terror suspects:

Attorney General announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the Central Intelligence Agency.

Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001.

The closing of the two cases means that the Obama administration’s limited effort to scrutinize the counterterrorism programs carried out under President George W. Bush has come to an end. Without elaborating, Mr. Holder suggested that the end of the criminal investigation should not be seen as a moral exoneration of those involved in the prisoners’ treatment and deaths.

“Based on the fully developed factual record concerning the two deaths, the department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” his statement said. It said the investigation “was not intended to, and does not resolve, broader questions regarding the propriety of the examined conduct.”

The Justice Department did not say publicly which cases had been under investigation. But officials had previously confirmed the identities of the prisoners: Gul Rahman, suspected of being a militant, who died in 2002 after being shackled to a concrete wall in near-freezing temperatures at a secret C.I.A. prison in Afghanistan known as the Salt Pit; and Manadel al-Jamadi, who died in C.I.A. custody in 2003 at Abu Ghraib prison in Iraq, where his corpse was photographed packed in ice and wrapped in plastic.

Mr. Holder’s announcement might remove a possible target for Republicans during the presidential campaign. But the decision will disappoint liberals who supported President Obama when he ran in 2008 and denounced what he called torture and abuse of prisoners under his predecessor.

“It is hugely disappointing that with ample evidence of torture, and documented cases of some people actually being tortured to death, that the Justice Department has not been able to mount a successful prosecution and hold people responsible for these crimes,” said Elisa Massimino, president of Human Rights First. “The American people need to know what was done in their name.”

As The New York Times pointed out in the wake of the decision, this is incredibly disappointing:

The public deserves a more detailed explanation of why charges could not be brought. In these egregious cases, it appears as though the C.I.A. interrogators tortured prisoners to death, going beyond even the harsh techniques authorized by the infamous torture memos cooked up by Justice Department lawyers to try to justify the unjustifiable. Not pursuing criminal charges may remove an avenue of attack against the Obama administration by Republicans, who continue to defend the use of torture. But absent a more persuasive explanation, the implications for the rule of law are deeply troubling.

In June 2011, Mr. Holder said that about 100 cases of detainee treatment had been reviewed and none warranted further investigation. The decision not to bring charges on these last two cases puts into sharp and shameful focus the Obama administration’s overall record of trying to avoid legal scrutiny of Bush-era abuses.

Not only have those responsible escaped criminal liability, but the administration has succeeded in denying victims of the harsh methods any day in court, using exaggerated claims of secrecy and executive power to get federal judges, who should know better, to toss out claims for civil relief. The broad denial of justice to victims disgraces both the administration and the courts.

At the start of his administration, President Obama said he wanted to “look forward,” not back, on the actions of C.I.A. interrogators. In practice, the administration has chosen to look back selectively, eschewing prosecutions and civil relief for victims while pursuing criminal charges against a former C.I.A. officer, John Kiriakou, on charges he disclosed the identity of other C.I.A. officers who participated in the interrogations.

These are not old, musty issues that the nation has moved beyond and the public can afford to ignore. Just a few months ago, during the Republican primary campaign, Mitt Romney expressed support for the use of waterboarding as a counterterrorism method, and he even denied that it amounts to torture. In the absence of any sort of legal accountability, there is no assurance that this lawless practice would not happen again.

That, indeed, is the real problem. By sweeping these abuses of civil liberties under the rug, the Obama Administration has essentially guaranteed that it will happen again in the name of “national security.” It’s bad enough that we have one political party that has this much disregard for civil liberties, now it seems as though we have two of them and the American people are much the worse off because of it.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Assuming “Platforms matter” (sarc.)

    Ron Paul’s analysis is probably as good as anyone’s:

    Obama Worse than Bush on Civil Liberties – Romney No Different From Obama

    If that’s true, it is something to worry about separate from the election, where it makes no difference.

    Like or Dislike: Thumb up 4 Thumb down 0

  2. John,

    Platforms aside, policy decisions since January 20, 2009 all point in the same direction

    Like or Dislike: Thumb up 0 Thumb down 1

  3. anjin-san says:

    We really got on the slippery slope after 9.11, and we are picking up speed. Both parties are at fault. If we are not careful, we will end up handing Bin Laden victory after all.

    Like or Dislike: Thumb up 6 Thumb down 0

  4. James Joyner says:

    This is, sadly, a classic case of getting the government we deserve. And, yes, both sides do it. Democrats learned from 2002 and 2004 that they’d get bludgeoned by a frightened electorate if they resisted any move, no matter how stupid and counterproductive, made in the name of safety. Obama has made damn sure that he won’t lose on account of being weak. It’s the security state equivalent of George Wallace’s pledge not to “get out-niggered again” after losing an election to a more radical segregationist early in his career.

    Like or Dislike: Thumb up 12 Thumb down 0

  5. @James Joyner:

    On the other hand, Manzanar is empty, right?

    (I’m sure historians could remind us of more severe restrictions put in place during other conflicts where were not irreversible, after all.)

    Like or Dislike: Thumb up 1 Thumb down 0

  6. PJ says:

    If only there was a third choice.

    Wait, there is!
    Gary Johnson, currently on the ballot in 43 states + DC.

    I understand that he’s the preferred candidate for those wanting the Republicans to win, but who doesn’t want to vote for the Republicans.
    As an added bonus it also gives them the “I didn’t vote for the Republicans” defense for the next four years if Willard wins.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. MBunge says:

    @James Joyner: “This is, sadly, a classic case of getting the government we deserve.”

    This is true, but let’s make sure we understand one of the big reasons for it.

    For a couple of generations now, civil libertarians have largely abandoned the political arena and relied on the judicial system and elite opinion to protect civil liberties. That’s allowed them to maintain absolutist or ideologically pure views on the subject. It’s also cost them dearly in mass public support for the very rights civil libertarians claim to care about. Look at the hard, on-the-ground, aggressive political work done by the NRA. Look at the political efforts of the pro-life or pro-choice movements. There’s been nothing like it on the subject of civil liberties, outside of Ron Paul’s last two presidential campaigns, which is pitifully little when we’re talking about the last 40 years or so.

    Mike

    Like or Dislike: Thumb up 2 Thumb down 0

  8. Modulo Myself says:

    Civil liberties is just the tip of the iceberg. American policy is imperial policy. It consistently denies the rights of other people to exist. We blow up schools, mosques, villages, cities. We kill hundreds of thousands, all for somewhat abstract purposes for which no apology can ever be made. We don’t even recognize the right of human beings who are tied into this violence to have feelings contrary to our own.

    To change this would require the murder of the American identity. Barring revolution, this will not happen in my lifetime. We like to kill as much as we like to feel sorry for ourselves for being so innocent to have been caught up in obscure corners of the world.

    Like or Dislike: Thumb up 0 Thumb down 3

  9. Tsar Nicholas says:

    A conservative merely is a liberal who’s been mugged by reality. Most liberals ultimately get mugged by reality and then become conservatives. It’s inevitable.

    Besides, even liberals are not actually liberal, if we’re talking about their own safety, the safety of their own families, their own taxes, their own school districts, their own homes, their own neighborhoods, their own businesses, their own property, their own investments, etc. Very few people are that dumb or that deranged.

    Regarding the Democrat Party, it’s a political apparatus, not a college debate society. Democrats want to win elections, not to appease full time academics or young students still living in cocoons. Certainly not to appease the fringe element of adult society that doesn’t actually grasp the differences between ideological principles and, you know, staying alive.

    The last time the Democrats ran a national election on a left-wing approach to foreign policy they lost 49 out of 50 states. “Peace at any cost,” eh? Um, no. Epic fail. They’ve learned their lessons. Even the Democrat Party at this stage of the game knows political shit from political shinola.

    Like or Dislike: Thumb up 2 Thumb down 13

  10. matt says:

    @anjin-san: I would argue with the cut backs in liberty we’ve already put in placed combined with the trillions we blew in Iraq and Afghanistan that Osama has already won..

    Democrats gave up on liberty when they voted for that abomination known as the patriot act (love the Republican naming of horrendous bills).

    Like or Dislike: Thumb up 3 Thumb down 1

  11. @Tsar Nicholas:

    Besides, even liberals are not actually liberal, if we’re talking about their own safety, the safety of their own families, their own taxes, their own school districts, their own homes, their own neighborhoods, their own businesses, their own property, their own investments, etc. Very few people are that dumb or that deranged.

    There’s a word for people so concerned for their own safety that they will abandon any principle just to keep themselves from risk. The word is “coward”.

    Like or Dislike: Thumb up 10 Thumb down 0

  12. george says:

    Was it Franklin who said: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. ”

    He was right. And it says a lot about Americans that they’re willing to give away such liberties because of physical risk. I often wonder how the GOP rationalizes this – they claim to be the party of small government, that requires people to accept risks for themselves. So how did the Patriot Act ever get passed? And Obama is not at all different.

    The problem being of course,as JP said, that since both parties are so reluctant to allow citizens to live with any risk, that there’s no difference to vote for on this issue.

    Like or Dislike: Thumb up 5 Thumb down 0

  13. @george:

    I often wonder how the GOP rationalizes this

    I think your problem stems from the mistaken assumption that the GOP’s decisions are the result of a rational thought process.

    Like or Dislike: Thumb up 3 Thumb down 3

  14. Woody says:

    Though the Obamas and the Romneys (and their cohorts) differ on motivation, they arrive at the same destination – civil liberties, as historically understood, are rapidly disappearing.

    Let’s face it, in the process of becoming primarily a profit center, the Fourth Estate has found FEAR sells amazingly well (whether it’s halitosis or terrorism).

    What’s more, the private sector is dismantling the idea of privacy with great energy and verve.

    It’s a difficult time to be a civil libertarian, no doubt about it.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. LC says:

    @anjin-san:

    If we are not careful, we will end up handing Bin Laden victory after all.

    If his goal was to turn the U.S. into a police state, then he has already won. It is not simply that both political parties support the dismantling of freedoms as basic as habeas corpus but that a majority of Americans seem just fine with it.

    They don’t think it is odd to need a passport to go to Canada or Mexico. They believe in torture. They think it is OK to practically be strip-searched every time they get on a plane “in the name of safety”. Even Tea Party members, those “limited government, can’t trust the government to pay my medical bills” voters, don’t have any problem with the idea that an American citizen can be picked up on the streets and shipped off to Guantanamo with no access to counsel for life (ok, a bit of hyperbole), or be killed in a foreign country by order of the President, because they are sure, of course, that it will never happen to them and will only happen to the “bad” guys. Orwell, it is beginning to appear, may have gotten only the century wrong.

    I find myself, for the second time in two days, in agreement with Doug. I think maybe I need to take a break.

    Like or Dislike: Thumb up 2 Thumb down 1

  16. An Interested Party says:

    We need a lot less of clichéd horse$hit like this…

    A conservative merely is a liberal who’s been mugged by reality. Most liberals ultimately get mugged by reality and then become conservatives. It’s inevitable.

    Besides, even liberals are not actually liberal, if we’re talking about their own safety, the safety of their own families, their own taxes, their own school districts, their own homes, their own neighborhoods, their own businesses, their own property, their own investments, etc. Very few people are that dumb or that deranged.

    …and a lot more discussion like this…

    Was it Franklin who said: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. ”

    At the same time, has this not been a pattern throughout this country’s history? Every time there was a foreign scare (WWI, WW II, Cold War) there was a push to restrict individual liberties and Americans had to wait for time (and the scare) to pass before liberty reasserted itself…

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Ben says:

    @An Interested Party:

    It’s been 11 years already and people are still scared shitless for no discernible reason. I don’t think liberty is coming back in my lifetime.

    Like or Dislike: Thumb up 4 Thumb down 1

  18. Dave says:

    @john personna: its only closed because Japan could surrender thus ending the need to detain Japanese Americans. The “War on Terror” has no formal state that can surrender. We aren’t rounding up Americans and putting them into camps this time, but we are killing them abroad. So when we detain citizens from other countries in black prisons through the use of rendition, we fail again. But this time we won’t know who is being held, where they are, or what’s being done to them in most cases. Hell it took a revolution in Libya just to find out what happened there.

    Like or Dislike: Thumb up 3 Thumb down 1

  19. Rob in CT says:

    I’m still amazed at how poor the public’s reaction to 9/11 was. And is. What a bunch of wusses.

    I can’t like JJ’s comment enough. That’s it exactly. The Dems aren’t gonna be “out-national securitied again.”

    And, if you really care about this stuff, you’ve got to at least consider throwing a vote Gary Johnson’s way. And/or donating to groups that fight for civil liberties (ACLU, or some other [?] if you don’t like the ACLU).

    Or, if/when a candidate for office (whose other positions you can manage to stomach) runs under the R or D banner arguing that this stuff has gone too far, you gotta think about them too. This is the basis for a lot of Ron Paul’s support. Despite his very obvious faults, he pushes back against National Security hysteria.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. Stonetools says:

    @James Joyner:

    The hopeful thing is that late in life, George Wallace ended up on the right side of civil rights. I’m hoping that say after the Afghan pullout, Congress will quietly roll back the worst provisions of the Patriot Act.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Rob in CT says:

    @Stonetools:

    I can’t work up the emotional courage to hope that. It would be nice, but I just don’t see any reason to believe it’s likely.

    Like or Dislike: Thumb up 1 Thumb down 0

  22. MBunge says:

    @Rob in CT: “And, if you really care about this stuff, you’ve got to at least consider throwing a vote Gary Johnson’s way.”

    I would encourage anyone in any state that’s clearly going for one candidate or the other to protest-vote away.

    Mike

    Like or Dislike: Thumb up 1 Thumb down 0

  23. John D'Geek says:

    @Stormy Dragon:

    I think your problem stems from the mistaken assumption that the GOP’s political decisions are the result of a rational thought process.

    Fixed that for ya.

    Like or Dislike: Thumb up 4 Thumb down 0

  24. Rob in CT says:

    @MBunge:

    Right, which is what I’m going to do. Connecticut isn’t in play.

    It’s a small gesture. But then so is voting at all.

    Like or Dislike: Thumb up 0 Thumb down 0