Quote of the Day, 2/3/09
In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the court does not have independent power…to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access.
-The Obama Justice Department, defying a court order on the grounds that it undermines the authority of the Unitary Executive.
(h/t: Greenwald, doin’ what he does.)
Greenwald’s overall take on the Obama administration’s approach to civil liberties:
Boy, good thing we didn’t vote for him on the basis of civil liberties, eh? Otherwise, we might be thinking that we’d been baited-and-switched into supporting the new FDR or something.
Why, one might almost suspect that
or something. If only we’d been warned!
Not that I’d ever gloat, or anything. That Would Be Wrong.
Comment by Rojas — 3/2/2009 @ 1:15 pm
I am shocked by this.
Comment by James — 3/2/2009 @ 2:52 pm
Counter-factuals are interesting, but if they’re to have any meaning, you have to run the script all the way through.
Do you (or Greenwald) suppose that President John McCain (or President Hillary Clinton) would have made these specific calls differently? What’s more, do you suppose that either would have made other calls—executive orders and directives on torture, extraordinary rendition, Gitmo, medical marijuana busts, et al—at all? And what other, additional calls might they have made (McCain in particular)—new counter-terrorism programs and new layers of secrecy etc., to say nothing of a Supreme Court justice that likely would have swayed the court to approve all previous (unlike what will likely happen with a few new liberal justices). Furthermore, it’s weird, but I actually trust Obama a bit on this stuff. We know to as much certainty as we can that he has no real ideological stake in curtailing civil liberties (unlike Bush, or McCain), his political life does not depend on Security Over Freedom in the same way his opponents’ almost certainly would have. Some level of compromise was a near-certainty when idealism hits the reality of the state’s superstructure. The question is whether we have a President who characteristically approaches those questions with pragmatism or with dogma. Approaching it with idealism, to be sure, would be the ideal, but given the choice (and, to remind you, we were), I’ll damn sure pick the former over the latter every single time, with no compunction or apologies.
Furthermore, how do you perceive the economic angle as having played out in the case of a President McCain or Clinton? McCain, my guess would be, would have been scattershot and panicky, instigating and exacerbating a lot more economic pains and crises of confidence than we have now, getting himself mired in useless fights with Congress over earmarks and whatnot while Wall Street panicks, banks fail, and the economy gets much worse relative to where it is today. He would furthermore provide an albatross around the neck of the GOP, who will have to follow his economic lead (which, from what we’ve seen, tends towards the scattershot, drama queeny, and wishy-washy) rather than having the freedom to begin to develop a counter-message of their own. He would almost certainly be a one-term President, and we would almost certainly get a populist groundswell giving the Democrats (and the eventual next Democratic president, whoever that might have been) even more of a specific socialist mandate (and disinclination to try to preempt or fold in Republican objections) than we have now.
Or did you think another 1% for Barr would have significantly altered those scenarios?
I think there ought to be a statute of limitations here on “Don’t blame me, I didn’t vote for Obama” stuff. You actually do a disservice to this issue by framing this as retroactively de-justify a vote for Obama (and again, I don’t think it does…at all). It was always going to be true, I think, that no matter who won, people would need to be vigilant and hold their feet to the fire, and the gulf between policy and the ideal civil libertarian angle would always exist. Where it does, it should be exposed and railed against, as Greenwald is doing.
But you set people up for a defensive posture when you frame it as you are, rather than organizing them under your banner.
But let’s ask Greenwald, shall we, if he believes, in retrospect, we ought to have voted McCain or Clinton over Obama on civil libertarian grounds. Want to guess as to what his answer might be? Probably pretty close to mine.
Comment by Brad — 3/2/2009 @ 5:50 pm
I doubt the question interests him. He wasn’t the one who was making the case that the principal issue of the 2008 election was civil liberties, and that the sea change that Obama would bring about in that area was sufficient to justify, for instance, a budget that would bring federal spending to a full 30% of the GNP.
Others thought that the difference between the candidates on the issue of civil liberties was just that significant. And well…now we have three good executive orders, and a view of the unitary executive which America’s leading civil liberties watchdog places to the right of the Bush administration.
I haven’t made a blanket decision on the Obama administration yet. But man…if I were an economic conservative who’d voted for him primarily on the basis of civil liberties, at this point I’d be PISSED.
Comment by Rojas — 3/2/2009 @ 9:53 pm
Greenwald added a link to Matt Holden that sums it up pretty good.
http://holdfastblog.com/2009/03/02/secrecy-and-executive-power/
Comment by Jerrod — 3/3/2009 @ 8:30 am
@Brad,
I wrote about this a few weeks ago. The issues continue to pile up – On executive privilege(Obama defends Bush claims regarding Rove testimony), Church-State separation (Obama continues Bush muddling by permitting religious based hiring for recipients of executive office Faith Based initiatives), Obama invokes state secrecy to protect rendition and torture, and Obama leaves loopholes on executive orders for torture. Of course, he is also continuing the direction he set last summer, when he voted for increased executive power to permit warrantless eavesdropping, and against the rule of law by granting immunity to lawbreaking telco’s who cooperated with illegal executive eavesdropping orders (Clinton voted against the FISA bill Obama supported).
It should be clearly understood that the over arching issue here is the check and balance between executive, legislative, and judicial branches. There would have been a huge difference if McCain was elected. The difference is how Congress behaves. What we saw with Bush, and we now see with Obama, is when the majority controlling Congress is the same party as the President, the Congress abrogates their oversight responsibility and becomes a lapdog for the executive branch. We did have some small positive movement on civil rights (and restoration of balance between the executive and legislature) in the last two years when we had a Dem Congress and a Rep President. That is over now. This Congress will not fight this President’s power grab. They would have fought McCain. That is the difference.
With Congress out of the fight, our only HOPE™ to restrain the power of the executive is with the judiciary. For the first time in my life, I am contributing to the ACLU. The courts are now the last line of defense.
It is the height of hypocrisy for anyone who railed against the Bush/Cheney power grab to poo-poo Obama’s moves or say we should take a wait and see attitude now. Obama started by standing on the unitary executive platform that Bush/Cheney built. He has a bigger majority in Congress than ever enjoyed by Bush and is moving to expand executive power even more. This is very bad.
Comment by mw — 3/3/2009 @ 11:13 am
I don’t disagree (and you should be giving to the ACLU anyway), though I would add that I think you wildly overestimate the power of the President/Congress split. Seems we finally did get our Democratic Congress, as you say—for all the heat, there sure wasn’t much fire in terms of actual policy impact on, say, budgets, FISA, wars, torture, rendition, judicial nominees etc. etc. etc. What the Congress/President split has been good for, lately, is ginning up controversy to no apparent policy end. You think you’ve found a silver bullet—you have not. If you’re looking back to the Bush years as a paragon of divided government effectiveness, you’ve lost the argument already.
Where I’m taking issue is framing it as a retroactive election matter without even the benefit of hindsight yet. I’d rather be railing against civil liberty incursions rather than having to play defense on “gotchya” bullshit every time Obama does something we don’t like. I can walk and chew gum at the same time, and I can also be disappointed in Obama’s conduct on an issue that’s important to me without particularly regretting having voted for him. In retrospect, having to do it over again, I still would have voted Obama. But I made clear up and down my endorsement that Obama wasn’t a messiah—the differences were relative, not absolute. That he would fall short of an ideal was inevitable, but that still doesn’t prove the counter-factual that we’d have been better off without him (read: with someone else). And if you’re asking me if I think we’d be better of in total with a President John McCain, my answer isn’t particularly guarded or qualified. I do not.
In any case, the groundwork for this kind of stuff re: civil liberties has already well been laid, and it’s inevitable that we’re going to continue to see these things. That’s the problem with giving government power, even the best of men aren’t generally willing to give it back (which is why it was worthwhile opposing it at the time and not just waiting around for some ideal-candidate-or-power-sharing-arrangement-to-be-named-later to come around.
As far as the big picture of civil liberties, I think it remains unclear. Some steps Obama has taken have been laudable and extremely significant, others have been dangerous and also extremely significant, and most of the rest have been pragmatic toe-in-the-water kind of things that we just don’t have the full picture on yet. But standing cocked to rush to judgment to try to get in election “I told you so”s strikes me as a counter-effective and juvenile way to frame it. I think the thing with civil liberties advocacy (or really, nearly every kind of approaching-purism advocacy) is that nearly everyone (if not everyone) will fall short of the ideal; that doesn’t mean a civil libertarian ought to stop voting for the sake of a “Don’t blame me” bumper sticker or for the sake of avoiding message board blowback from anonymous online posters turning it into a non-falsifiable counter-factual gotchya game.
Comment by Brad — 3/3/2009 @ 11:35 am
Well, sorry if my little touchdown dance on this one upset you. If we’re all fortunate, then maybe Obama will turn things around and justify your confidence in him where civil liberties are concerned.
The prognosis, though, is not optimistic. And I would suggest that I was right, not just about the outcome, but about the reasons for it. Obama appears to support civil liberties only up to the point that they present a problem with his desire to enlarge government.
That, by the way, is the kind explanation for his moves on the terror cases–that he’s making a concession for the sake of enacting the rest of his agenda. The alternative view is that he’s endorsing the unitary executive because he believes it is good in itself, which would make the bulk of his civil liberties rhetoric during the campaign an outright lie.
Comment by Rojas — 3/3/2009 @ 12:52 pm
Here’s the thing though Rojas. That worst-case alternate view for Obama that might be true was one of his opponent’s stated core principles.
I’m with you on the need to be cautious here, though I’m still willing to give him the benefit of the doubt. But your touchdown dance entails that we had a better option available to us—it is, of course, a relative question you’re begging. And if you want to argue to me that John McCain would have believed less in security over liberty than Barack Obama, by all means feel free. (And my hunch here is that your unexamined operating premise is that a unitary executive in support of an economic agenda is qualitatively worse than a unitary executive in support of a military/police agenda, which is something I disagree with).
Re-read my first post here for how I think a McCain presidency would have probably ended up by this point. That I think that, by the way, does not necessitate for me a defense of all Obama’s moves on civil liberties from the election forward—again, I can both believe he was the best option available and believe we have to be vigilant over any executive, including him (well, because he’s President, especially him). It’s weird to me that people attributed to me some sort of belief that Obama was a Messianic figure, and then demand that I adhere to that view (which I never particularly held) or…I don’t know what, lose Internet Arguing Points (TM) I guess.
Comment by Brad — 3/3/2009 @ 1:14 pm
The time for the voter vigilance was in the Presidential election. That opportunity is now lost for four years, except for the railing from bloggers like Greenwald who has a big enough platform to at least get above the noise level.
Try to imagine the hue and cry that would have come from this Congress and Obama supporters (and Brad)if McCain had won and taken these same actions.
Contrary to Brad’s assertions, there was progress made on the civil liberties front in the two years that we had a divided government. Both the FISA bill and Patriot bill were softened with more civil liberty protections imposed. They are both still bad, but they got slightly better. The congressional investigations of the Justice Department firings resulted in a new AG, cleaning house in the Justice dept and probably was a contributing factor to the resignation of Rove. Rumsfeld – one of the enablers of the torture regimen – was booted, torture and rendition was investigated, and some tightening of the interrogation rules occurred with bipartisan legislation led by McCain. Did the two years of divided government undo the damage of the six years of Bush/Cheney abuse? No. Of course not. It is an incremental process. Was there progress? Yes. Progress that is now being undone by the Obama Administration and a bend-over Congress. We are unequivocally moving backwards again.
The one positive civil liberty step so far, was Obama’s executive order on torture re-embracing the Geneva Convention. Even there he left himself a big loophole. Like his predecessor Obama is for anything that increases the power of the Presidency, and against anything that weakens it.
I can only HOPE™ that Obama will appoint judges that will overrule the executive power grab his administration is advocating.
Comment by mw — 3/3/2009 @ 2:15 pm
People don’t give up power, it has to be forced upon them. I had hopes that Obama would be able to rise above this historical trend but was prepared to see what we’re seeing. It’s a lot easier to rail against Prez Power from the campaign trail, but then when you’re committed to doing The Right Thing™ as president, you realize that having that power might be useful (and your advisor’s surely point it out to you as well). It’s like Boromir and the One Ring.
We need Congressional (and citizen opposition) to get these things adjudicated. The courts are the answer, both judicial and of public opinion.
Comment by Jerrod — 3/3/2009 @ 6:32 pm
http://www.theatlantic.com/doc/200901/founders-mistake
Epps argues that we just need to rewrite the entire executive branch part of the constitution and I find myself agreeing.
All the ‘gotchya’ nonsense is just that, nonsense that ignores the real problem, it’s not who is in the white house, it is what tht gives that person, too damned much power, even with an oppositional Congress.
Comment by Mortexai — 3/4/2009 @ 3:37 pm
If the identity of the President is irrelevant to the issue, then surely the “nonsense” would be the claim that one should vote for a particular candidate on civil liberties grounds.
Which, frankly, I don’t think is nonsense either. There can be substantial differences in Presidential policies in terms of their effects on civil liberties, even given the surrounding legal environment. I’m just not sure those differences exist in this instance.
Comment by Rojas — 3/4/2009 @ 3:53 pm
Comment by Brad — 3/4/2009 @ 3:58 pm
The gotchya is irrelevant because the only other option available was to say ‘ah yer right, screw civil rights’ and vote entirely on anything that wasn’t that. If that is your viewpoint, then what the hell are you doing in this discussion? You don’t give a damn about civil rights anyway, right?
Comment by Mortexai — 3/5/2009 @ 1:51 am
Nice link, Mord, I had intended to post on that article. I don’t know if I agree with all of it, but if nothing else its genius for asking the question.
Comment by Jerrod — 3/5/2009 @ 6:50 am
I do care about civil rights, and I voted for a candidate whose support for them appears to have been superior to Obama’s.
That aside, it is entirely possible to care about civil rights and to also care about other things. One needn’t be a single-issue voter on such matters, particularly when the commitment of either major party candidate to the issue is questionable.
Comment by Rojas — 3/5/2009 @ 10:23 am
As was, I would add, McCain’s commitment to fiscal responsibility. He’s now banging on about 300 million dollars for beaver management which makes him about the least relevant Republican critic on matters economic operating right now.
But I’m sure you’d agree that there are varying degrees of “questionable commitment” and varying levels of valuation and hypothetical counterfactuas (see my reposted blockquote above). To say that because Obama has fallen short of my ideal on civil liberties means that there would have been no difference between he and McCain in the long view and thus the issue is moot is not just (admittedly non-falsifiably) incorrect, but fairly silly.
I still think it’s pretty early to be declaring Obama’s presidency a failure on civil liberties, or anything really. We’re not even out of the first 100 days, and contra Greenwald, I think the indications so far are at least as positive as they are negative, probably more so. I think each of the items needs to be aired and examined and debated, and I’ll say right now (as, indeed, I did in my endorsement) that I fully expect Obama to fall far short of ideals, and for me to join the trenches against him where that happens, but turning it into a “don’t blame me” bumper sticker war is silly, and needless, and polarizing. Just to speak for myself, you’re triggering less my outrage at civil liberties encroachments and more a defensive impulse to “stand by my guy”, which I’m trying to resist because, frankly, I’d rather not fall into that trap myself.
Like I said, I share your outrage here. Doesn’t change how I would have voted, not by a longshot.
Comment by Brad — 3/5/2009 @ 1:43 pm
If only John McCain would abandon such trivial matters as wasteful government earmarks, and expend his energy on matters of true import, such as demonizing Rush Limbaugh.
Now THAT’s leadership we can believe in.
Comment by Rojas — 3/5/2009 @ 2:57 pm
Well, we sure do have John McCain to thank for raising public awareness on maybe .08% of wasteful government spending, expending his energy on distracting the real debate fiscal conservatives ought to be interested in. Ron Paul asked for more earmarks than we spend on beaver maintenance.
Who is expanding their energies on demonizing Rush Limbaugh? Are you subscribing to the notion that that’s a scheme concocted by the Obama administration at great energy and expense and not just their PR department happy to bait the GOP on an issue of its own creation?
Comment by Brad — 3/5/2009 @ 3:01 pm
I disagree on the ‘wait and see’ Brad, I think there needs to be a lot more greenwalding of the subject, because it seems to me that the more noise, the more likely it might improve down the road.
Comment by Mortexai — 3/5/2009 @ 3:39 pm
Don’t disagree at all. We can pass summary judgment on each individual item as they come up, and damn well should (and damn well raise hell about them).
I mean it’s a little early for “We should have voted for McCain because Obama’s administration has been worse or the same on civil liberties as his would have been!” is let’s say a tad early, considering we’re what 60 days in. Rojas is begging the question that we should mark down in the history books now Obama’s record on civil liberties. I think that’s stupid, and saying so, even though I absolutely agree with Rojas/Greenwald et al on the perniciousness of this particular move.
Obama can and probably will be a net plus for civil liberties relative to Bush and probably McCain in the long run, despite having a myriad of black marks (which he will also probably have, and which we should recognize and highlight where and when they occur). But anyone who claims certainty on that already is axe-grinding.
That’s been my only beef here.
Comment by Brad — 3/5/2009 @ 4:15 pm
I guess I sort of figured that comments like “I haven’t made a blanket decision on the Obama administration yet” and “If we’re all fortunate, then maybe Obama will turn things around” might be enough to assuage that particular sentiment.
The President is being a dickhead. That’s worth recognizing. Which is why I did so.
Comment by Rojas — 3/5/2009 @ 11:59 pm
Fair enough. I guess I figured statements like “he’ll surely fall far short of the ideal” and “he won’t be perfect” and whatnot might have cleaved me from having to retroactively defend his every civil liberties move without trying to have “I was wrong to vote for him!” forcibly dragged from my lips every time.
Nor do I (really) disagree with what you’re saying about the prism through which Obama judges these things. He surely is a true believer that the government can be a good mechanism of change. Let’s just say there are a few other prisms that scare me more, as far as civil liberties are concerned.
Comment by Brad — 3/6/2009 @ 8:50 am