Strengthening Constitutional Self-Government

No Left Turns


Civil Liberties Betrayed?

Joel Mathis has had it with Barack Obama. Mathis voted for Obama to end torture, Guantanamo detentions, and warrantless wiretapping. Not only has the Obama administration tabled those agenda items, but the president's decision to sign the National Defense Authorization Act (NDAA) last week was, for Mathis, "the final betrayal." After threatening to veto the bill, President Obama signed it into law, despite warnings from fellow Democrats that it would "essentially authorize the indefinite imprisonment of American citizens without charges." The New York Times editorialized against its "terrible new measures that will make indefinite detention and military trials a permanent part of American law."

Mathis has company, then, in feeling that Obama has "actively betrayed," with this decision and others, 2008's hopes for "a new dawn for civil liberties and due process rights." As he notes, however, most of the American political spectrum feels differently. A liberal Democratic president has taken a position on correctly calibrating civil liberties in light of national security imperatives that affirms more than it repudiates his conservative Republican predecessor's policies. Mathis notes that John Boehner and Mitch McConnell voted for NDAA - as did Nancy Pelosi and Harry Reid.

An alternative interpretation of this quasi-consensus in favor of giving the government the power to circumvent normal criminal procedure and circumscribe peacetime civil liberties is that national security is a hard, grave business. Candidates who spoke as glibly as bloggers and editorialists about respecting boundaries regardless of the consequences become far less categorical when they're in important positions of national power and must confront just how horrific those consequences might be.

Drawing the lines and rightly understanding the nation's exigencies is not merely a post-9/11 problem. The most famous example is Abraham Lincoln suspending the writ of habeus corpus - first by executive order, later according to congressional enactment - as secession and civil war consumed the nation in 1861. He defended his actions in a message to Congress: "The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the [president's] official oath [of office] be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?"

This argument has always struck me as an application of a basic principle of Thomistic metaphysics: The first attribute of essence is existence. Before an entity can be this or be that it must, first, be. Preserving attributes in ways that jeopardize the entity's existence is, as a result, indefensible. As Lincoln put the point in 1864: "My oath to preserve the constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means, that government--that nation--of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation."

Of course, a president may mistakenly or cynically claim that the preservation of the nation mandates otherwise unconstitutional government actions. In 1944 the Supreme Court upheld the constitutionality of sending over 100,000 Japanese Americans to internment camps after Pearl Harbor, a policy implemented by two of the great liberal heroes of the last century, President Franklin Roosevelt and Earl Warren, later Chief Justice of the Supreme Court but at the time the governor of California. Eight years later, however, the Court ruled that President Harry Truman had exceeded his constitutional and statutory authority when, during the Korean War, he issued orders nationalizing the steel industry to prevent a strike by the United Steelworkers from shutting down the mills.

There is, obviously, no tidy formula that defines the circumstances under which otherwise unconstitutional may be rendered permissible. In the absence of such a formula, the position of civil libertarian absolutists is that the only way to avoid a slippery slope is to insist that there are no circumstances, ever, where grave national threats legitimate ordinarily unconstitutional government actions. This may not be Representative Ron Paul's belief, exactly, but does seem to animate some of his supporters. A more holistic but less clear-cut position is that the idea of eternal vigilance being the price of liberty works two ways: First, we must be vigilant against all enemies, foreign and domestic, whose threats may sometimes require the government to preserve the nation by taking actions that would ordinarily be impermissible. Second, we must be vigilant against the government, especially when it claims that grave dangers justify extraordinary actions. There are no guarantees, but the continuous exercise of both kinds of vigilance gives us our best hope for preserving our freedoms, and the political order in which they are embedded.
Categories > Presidency

Discussions - 10 Comments

The emphasis that Ron Paul placed on the civil liberties question early this morning suggests to me that he is thinking seriously about a third-party bid. Those on the left who are furious that Obama did not close Gitmo, end rendition, hold civilian trials for terrorist suspects, etc.,might make them take a serious look at a Paul candidacy. He is not a Republican, as his on-line comments endorsing secessionism make very clear. He thinks like all LIncoln haters, failing to distinguish between imagined tyranny and the real thing.

Aauugghh! Cut these words: "make them" in the fourth line.

The reality of this situation throws so many right-wing assumptions into utter disarray - even if we look at it from the pretentiously stoic Vigilance-vs-Liberties that this blogger offers.

"A liberal Democratic president has taken a position on correctly calibrating civil liberties in light of national security imperatives that affirms more than it repudiates his conservative Republican predecessor's policies."

Firstly, is this president actually liberal (overall)?

That has long been highly questionable, if not laughable.

If so many self-described liberals and progressives (and nearly all who don't have issues with describing themselves as leftist) - individuals and groups - do not agree with this labeling, then it may be quite doubtful.

It's amazing to me that so many conservatives - who were so terrified of the possibility of electing a Marxist fascist who "pals around with terrorists" and who was going to destroy America with Big Government and Obamacare - are now seemingly perfectly comfortable with the idea that he could have them locked up indefinitely in a remote prison outside of the US (remember when the DHS issued that memo to watch out for right-wing terrorists who were fans of Glenn Beck?).

"his conservative Republican predecessor" ??

George W. Bush?
I've heard/read numerous times by many self-described conservatives (esp. libertarian conservatives) that Dubya was not a true conservative.

Allowing the president to unilaterally determine an individual to be a threat (in a largely undefined war of indefinite length and scope, with indefinite goals for determining its completion) is not "calibrating" civil liberties - it's making a mockery of the concept. As for the dodgy Lincoln comparison (in the hopes of putting a sheer of respectability on what can only be seen as concretization and expansion of a conservative policy - bugle calls...drum roll.... LINCOLN!!), we are not in the midst of a civil war, and any existential threats we face as a nation come from our own self-destructive impulses. The Wall Street-DC nexus will bring us down long before another batch of fanatics with boxcutters ever could.

The USA could not just exist, but thrive, without any need to resort to indefinite detention and military trials to keep terrorists largely at bay.

Joel Mathis is afraid of Rick Santorum?

"The USA could not just exist, but thrive, without any need to resort to indefinite detention and military trials to keep terrorists largely at bay."

Agreed. Just send all the terrorists to the Occupy Camps in NYC and California. They would fit right in and no one with any sense really cares about NYC or California.

I have responded to Bill's thoughtful post at my blog. Key paragraph:

"Given the eternal nature of the War on Terror, we shouldn't fool ourselves that we're on the same path of liberty that Americans have imperfectly been trodding for a couple of centuries. We're choosing a slightly different path, in the name of security. Most of us might not even notice the difference in our daily lives—we probably won't see the differences except in occasional Pulitzer-winning newspaper stories about how "other" people have been made to suffer—but it will be different all the same. We're not setting aside the Constitution and law in order to save them; we're simply setting them aside."

There is a lot of truth to that Craig.

1st of all calibrating civil liberties already occurs at every level of the judicial process, and on every constitutional question (because these are questions of fact and law, or of how the law should be calibrated/applied to a narrow fact) While the ACLU is often on one side, you can bet that the Attorney Generals are not sleeping.

So there is also some truth to the idea that the Lincoln comparison is dodgy. Not just because we are not in the midst of a civil war(appart from the blogosphere and the courtroom), but also because we haven't suspended the writ of habeus corpus.

About Hugo Black (the author of Korematsu) to illustrate. Hugo Black was an absolutist when it came to the bill of rights, but he took a very narrow view of these absolute rights. He was even on the dissenting side of Tinker v. Des moines, argueing that the government should not be in the business of second guessing the judgement of principals, school officials and school boards. If Free Speech was disruptive to the school's primary mission as an entity, then it should be stamped out. Thus Hugo Black read what Dr. Voegeli might call "Thomistic metaphysics" into the constitution. "Preserving attributes in ways that jeopardize the entity's existence is, as a result, indefensible." This is close paraphrasing of what Hugo Black, said in his Tinker dissent.

Of course Earl Warren came in and took a more exacting scapel to these broader sorts of metaphysical, macro-pop sociology "factual" assertions.

We now know for example that Korematsu was the result of dishonest and bad faith arguments made by the solicitor general. The key allegations had been discredited, but the solicitor general pressed on with the generalized claims regardless of their applicability to the facts or individuals involved.

I am not sure I have anything else to say, as I consider the arguments presented here themselves a sort of product of particular markets. I think the editorializing exagerates predictively. I would however say that the type of justices appointed to the Supreme Court matters. With Kennedy's on the bench Obama's presidential signing statement would be weighed very heavily. Kennedy's jurisprudence is generally disliked by the ideologues in part because it tries to reach the correct result.

I agree with president Obama, I don't think the NDAA authorizes such detention, and I agree with Justice Kennedy that presidential signing statements should be taken seriously. So it seems likely that section 1021 will only apply to enemy combatants.

Also in terms of not shuting down Gitmo, here is 1026, which might in fact do just that (eventually). Notice that 1026 a. basically cuts off funding. I am not 100% sure that there aren't backdoor ways of doing the accounting.

(a) IN GENERAL.—No amounts authorized to be appropriated
or otherwise made available to the Department of Defense for
fiscal year 2012 may be used to construct or modify any facility
in the United States, its territories, or possessions to house any
individual detained at Guantanamo for the purposes of detention
or imprisonment in the custody or under the control of the Department
of Defense unless authorized by Congress.
(b) EXCEPTION.—The prohibition in subsection (a) shall not
apply to any modification of facilities at United States Naval Station,
Guantanamo Bay, Cuba.
section, the term ‘‘individual detained at Guantanamo’’ has the
meaning given that term in section 1028(e)(2).
Ike Skelton National Defense Authorization Act for Fiscal Year
2011 (Public Law 111–383; 124 Stat. 4353) is amended by striking
subsections (a), (b), and (c).


If you have those concerns, I think it is wise to give a few bucks to the ACLU.

Then again it is kind of the ACLU marketing blitz, it is more plausible than Justin's persectued christians shtick, but if you care about that you donnate to a different set of lawyers.

I think everything in america is much more of a business than it used to be.

I even think that Voegelli's hollistic understanding is simply an understanding of the legal market. You basically pay off folks to be eternally vigilant for you or issues you care about.

The market for elected leaders doesn't really work that way, because it is a binary choice. Obama can take on voters(clients) without really screening for conflicts of interest.

It may actually be structually impossible for a person running for executive office to represent those with civil liberty concerns, unless he turns around and blames it all on the liberal court, or the conservative court(somewhat more plausible), or republican interference, media bias, et al.

This is in part because institutionally at least the ACLU or even the ACU, or ADF are always from a business standpoint on the other side of the v.

Obama was elected during a recession, the ACLU was hurting for cash, and a whole lot of people were thinking that with Obama elected there would be less of a need or demand for the ACLU.

Amazingly crime rates also dropped, so lawyers had to do something, and a lot of them decided that before being sidetracked by high paying jobs they had wanted to fight the good fight. And it doesn't take that many lawyers to gin up some tyranny, or to take on generally unprofitable or lower margin cases.

So Obama was more or less doomed by the demographics of the recession.

"Most of us might not even notice the difference in our daily lives—we probably won't see the differences except in occasional Pulitzer-winning newspaper stories about how "other" people have been made to suffer—but it will be different all the same."

Seems true. lt isn't that Obama hasn't made some progress on the civil liberties side, its that there are more lawyers and bloggers, wikileakers and twitters, serving as opposition and proping up demand.

"Just send all the terrorists to the Occupy Camps in NYC and California. They would fit right in and no one with any sense really cares about NYC or California."

Wow. No one with any sense really cares about NYC or California - the most populous city and state, respectively, in the USA? That speaks volumes.

Assuming you count yourself among those with sense, cow (a very safe assumption, considering your bloated ego), then I guess that made 9/11 considerably less tragic and horrific for you than how it's usually described?

What did you say when the Twin Towers collapsed?

"Oh Dear Lord! I hope nobody from outside of NYC or California were on those planes or in the buildings!!"

Numbers-wise, a death tally of 9/11 that doesn't count denizens of NYC comes off as just twice as deadly as McVeigh's Oklahoma City Bombing - as opposed to more than 17 times as deadly when we do include them. Once we exclude the 2,606 who died in the WTC Twin Towers (which was located in NYC), that leaves us with only 371 people worth caring about on 9/11 (Comparatively, the OKC bombing took 169 lives) - using your standard. Of course, this doesn't take into consideration that some of the victims on the hijacked planes (with Shanksville, NYC, or the Pentagon as their targets) might have been residents of NYC or California - which would reduce the tragedy's intensity even further.

That was an excellent and thorough response (just read it at your blog).

Leave a Comment

* denotes a required field

No TrackBacks
TrackBack URL:

Warning: include(/srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/sd/nlt-blog/_includes/promo-main.php): failed to open stream: No such file or directory in /srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/2012/01/civil-liberties-betrayed.php on line 769

Warning: include(): Failed opening '/srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/sd/nlt-blog/_includes/promo-main.php' for inclusion (include_path='.:/opt/sp/php7.2/lib/php') in /srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/2012/01/civil-liberties-betrayed.php on line 769