Will Democrats Restore Our Liberties Stolen in the Bush Era?

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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The original Alternet article is here.

Comments

[GuiltyByStander]

Thanks Ari for this well-researched piece. You reconfirm my enthusiasm for Joe Biden and my respect for Senator Dodd.

[PACRAT]

Difficult to Descend from Olympus

The likelihood of the next president giving up the powers that Bush has accrued to himself is slim - whether the next president is a democrat or a republican. How does a God descend to earth? Maybe by being born in a stable?

Even if the next president is well intentioned and strong, it will take time to rebuild this country according to the Consititution - one term will not do it. It will also take time to change the poor image of America around the world thanks to Bush and co.

The only way to shortcut this is to bring into the cabinet some real giants, not the acquiescent wimps we have had for several years. It doesn't matter what party they belong to - we need honesty and strong people, not another bunchy of syncophants and law breakers.

[snaggster]

Isn't it the Dems in Congress that would have to restore what's been taken? What are Pelosi & Reid's positions? Not good, I presume. This would involve doing something.

[LindaJay]

Great article, Ari! I, too, have been wondering why there is so little being done to restore the Constitution that Bush/Cheney have basically torn up and stomped all over. Unfortunately, Congress has been very complicit in allowing that to happen, and even passing bills that assisted Bush/Cheney in taking away many of the rights we have always enjoyed.

I'm really not convinced that we need more laws passed to check more power grabs or keep Bush from desecrating yet more of our laws. In my mind, when things come to this point, you have to start impeachment proceedings. This is exactly why our forefathers included impeachment in the Constitution. We have an executive branch that has acted way outside their powers, has broken laws right and left, and has grabbed power that belongs to Congress. If that isn't a call for impeachment, which the Constitution provided for, I'm not sure what would be. As Kucinich stated, if you have a Constitutional crisis, impeachment is the way you solve it. Not passing more laws that are basically the same as the ones we already have (such as banning torture).

The problem, as we all know, is getting Congress to do what the Constitution says is their duty.

[researcher]

no too spinless and dems part of the problem.

capitalism leads to wars for profits and this leads to imperialism and this leads to stateside mercenary armies and this leads to a dictator and this leads to fascism.

must have that mercenary army and right to torture citizens in place before fascism can take hold.

demos and repubs working on that now while americans line up to vote for them.

we are a very young country we need to experience fascism to learn what we dont like.

europe had to experience it to learn the price of fascism.

only way elitists can keep their wealth in a country losing its wealth is fascism.

even the universities like stanford are in on it with the hiring of rummy and condi.

but have no fear americans can still shop at wal mart so things will be fine.

[realitytrumpsbull]

But, but, if Congresser does that, then
we'll be stuck with the crappy Old World Order,
not the shiny pretty NEW one, dammit! And
what are people going to do with these 'rights'
things, anyway? How will all of Bush's
corporo-pals set up their maquiladora
factories if all of a suddener people start
insisting on stuff like states' rights and
secure borders and 4th amendment stuff and
start asking questions about things like
UNICOR and all the public snooping and and and.
Gotta keep the War On Terra stoked up,
and black helicopters don't fly on recycled
coke cans, jackboots aren't free, you know.
Besides, with Rev. Smackworthy of The
People's Church Of The Mostest MaxCash
giving his solid endorsement on all 357 of
his 24-hour channels, well, if Smackworthy
is with us, who could be against us? Well,
maybe the 290 million OTHER Murkins who
now make a daily habit of watching the news...
and wondering What The Hell...I hope some of
the dems and repubs bounce over onto the
Independent ticket, and then we can REALLY
start getting back to some fundamentals,
life, liberty, property, that kind of thing...

[MrLion]

Speaking of civil liberties, I haven't heard a peep out of the Democratic candidates regarding the War on Drugs. Hundreds of thousands of Americans are serving lengthy sentences for essentially non-violent narcotics offenses.

[LizM]

First of all, thank-you! Thank-you from the bottom of my heart. I am far from prone to sentimentalism, but that small recognition almost brought a tear to my eyes...such has been the level of frustration, of late.

I was wondering...I hope you are able to and would seriously consider tracking down the most qualified candidate for President and question him about all of the issues you raise in this post...and then some! I must warn you, though - you should be prepared to spend more than a few minutes with him as I am sure he would be prepared to discuss these issues with you for a very long time, with great passion and enthusiasm.

Of course, you would have to promise to post the complete transcript!