David Frum raises a crucial non-issue for Democrats

I love David Frum's diagnoses of what's wrong with the Republican party (for many years now, he's had the no doubt unsettling experience of being admired more by his political adversaries than by his putative allies). But as he now takes a turn at prescribing a healthy political evolution for Democrats, he's spinning his wheels.

Frum warns (or concern-trolls) Democrats that if they simply anoint Hillary Clinton in 2016, they'll miss a revivifying debate on core elements of the party's future direction, defined thus:

* Were President Obama's counter-terrorism policies effective and necessary? Or did they over-reach and violate important liberties?

* Is Obamacare a charter for regulated competition among private health insurers? Or is it a deeply flawed half-way step on the way to Medicare for all?

A pair of July 4 warnings, and one eulogy

If I ever picked up the phone to a pollster, I guess I'd have to say I don't like the country's direction. To celebrate the Fourth, then, I'd like to highlight a trio of warnings/diagnoses published today.

The first is by Kurt Andersen, writing in the Times about The Downside of Liberty. He is not the first to link the sixties mantra "if it feels good, do it," with the '80s' "greed is good," but he does so cogently:

The next Republican president

About fifteen years ago, as I've recounted perhaps one time too many, I read a biography of Eisenhower and it dawned on me that a) for Democrats to win every election was not only impossible but undesirable, and that b) my political perspective had hitherto been rather limited, since I not only had never voted for a Republican for president but could not imagine doing so. I began mentally testing myself: could I vote for a Republican? Under what circumstances? (Asking myself the same question now, looking back on my life as a voter, I could make a strong case for George H.W. Bush -- who expertly helped feather down the Soviet Union, rolled back Saddam's Kuwait grab, and took a major step toward the balanced budget achieved in the Clinton years.)

My timing was spectacularly bad.  I don't recall if this little epiphany occurred before or after the 1994 election and the full Gingrichization of the GOP.  But in the intervening years, the GOP has hardened into the party of unlimited tax cuts and unlimited deficits, reckless unilateral warmongering, relentless immigrant-bashing and destruction of core civil liberties.

In recent weeks, as I've watched Obama go into post-election remission while the Republicans seize the whip hand on the Bush tax cuts and shamelessly hold New Start hostage, a kind of mirror-mantra has taken shape: the country can't afford another Republican president.  That is, not until the GOP has been chastened by further electoral setbacks and forced to acknowledge a few elemental truths: you can't fix the structural deficit without increasing tax revenue, democracy can't survive nonstop further concentration of wealth, the U.S. can't remain the world's sole wealthy country that fails to offer universal healthcare or afford to leave medical inflation untamed, our response to every threat abroad can't be a unilateral preemptive strike, and our civil liberties can't survive long-term when the government sanctions torture and shreds the fourth amendment (Obama has helped sustained the latter outrage, but as long as Republicans bay relentlessly for terrorist blood, Democrats will never roll back  the all of Bush's infringements).

Barack Jefferson on National Security

Forgive, dear reader, a half-baked historical analogy -- or rather, suggestion of long continuity in American executives' propensity to claim power over the life and limb of anyone they deem a threat to national security. First, Obama, asserting that right in court (via Washington Post:

The Obama administration urged a federal judge early Saturday to dismiss a lawsuit over its targeting of a U.S. citizen for killing overseas, saying that the case would reveal state secrets.

The U.S.-born citizen, Anwar al-Aulaqi, is a cleric now believed to be in Yemen. Federal authorities allege that he is leading a branch of al-Qaeda there.

Government lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president's powers in the global war against al-Qaeda.

Civil liberties groups sued the U.S. government on behalf of Aulaqi's father, arguing that the CIA and the Joint Special Operations Command's placement of Aulaqi on a capture-or-kill list of suspected terrorists - outside a war zone and absent an imminent threat - amounted to an extrajudicial execution order against a U.S. citizen.

They asked a U.S. district court in Washington to block the targeting.

In response, Justice Department spokesman Matthew Miller said that the groups are asking "a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action - all on behalf of a leader of a foreign terrorist organization."

Miller added, "If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions." 

Next, Thomas Jefferson, whose commitment to the rule of law was surprisingly equivocal.  Leonard Levy, in Jefferson and Civil Liberties: The Darker Side, describes Jefferson's willingness, as a leading member of the Virginia legislature during the Revolutionary War, to declare open season on an alleged Tory brigand, a deed he defended to his dying day:

Hillary threads her own FISA needle

The FISA battle is over, for now. Bush and Rockefeller have their telecom immunity, basket warrants, weakened FISA oversight. Perhaps Obama opened the floodgates with his about-face. Stand in the breach he didn't.

Hillary Clinton voted against the bill today. Not only the political calculation but also the merits of the case may look different to one who may be President in a few months (though Hillary doubtless still hopes/intends to be President in a few years). Nonetheless, if you ask which of the two rivals showed the greater political courage, consistency, commitment to civil liberties on this defining issue, I must say the answer is not what I would have expected -- or, once I'd made my primary choice, wished.

Back in the primaries, Obama hammered Clinton's Iraq vote as essentially a political calculation; she was in his sights on March 19, when he charged, "there were too many politicians in Washington who spent too little time reading the intelligence reports, and too much time reading public opinion." If the nomination fight were still on, imagine what Clinton might say about Obama's FISA choice. Instead, to her credit, she soft-pedaled the split within the party:

I applaud the efforts of my colleagues who negotiated this legislation, and I respect my colleagues who reached a different conclusion on today’s vote.

Perhaps in keeping with that gesture towards those supporting the bill, Hillary emphasized the relative knowledge void in which the Congress was forced to act as one reason to vote against the bill:

What is more, even as we considered this legislation, the administration refused to allow the overwhelming majority of Senators to examine the warrantless wiretapping program. This made it exceedingly difficult for those Senators who are not on the Intelligence and Judiciary Committees to assess the need for the operational details of the legislation, and whether greater protections are necessary. The same can be said for an assessment of the telecom immunity provisions. On an issue of such tremendous importance to our citizens – and in particular to New Yorkers – all Senators should have been entitled to receive briefings that would have enabled them to make an informed decision about the merits of this legislation. I cannot support this legislation when we know neither the nature of the surveillance activities authorized nor the role played by telecommunications companies granted immunity.

Hillary also cited telecom immunity and the limited power accorded the FISA court to review the government’s targeting and minimization procedures as reasons to reject the bill. But in keeping with her moderate tone, she allowed that the bill "does strengthen oversight of the administration’s surveillance activities over previous drafts," affording Obama and others some cover for supporting it.

I still believe that Obama and other senators may have voted on the merits as they see them -- if, indeed, you can separate the fear of being painted soft on terror from the fear of actually enabling terror (even if you suspect that a contemplated course is unlikely to crimp antiterror efforts, you might still fear that it might). If the calculation was not mainly political, it would seem that proximity to the Presidency changed (concentrated?) Obama's mind, because change he did.

He's still got a lot of explaining to do. His blog statement to supporters was barely a beginning.

Magna Carta survives by one vote

Like anyone with a modicum of regard for the civil liberties guaranteed by the U.S. Constitution, I'm elated and relieved by the Supreme Court's affirmation in Boumediene v. Bush of the right of habeas for Guantanamo detainees. Our system is working insofar as the Court has three times repudiated the Bush Administration's abrogation of this most basic and ancient of Anglo American civil liberties.

But I am terrified by the 5-4 vote. This country is truly on a knife's edge. One more Supreme Court justice in the mold of Roberts and Alito, and the Court will hand essentially unlimited power to the executive branch, endorsing Dick Cheney's insanely expansive view of the power of a so-called "unitary executive" to do whatever it wants to whomever it pleases.

McCain, of course, has promised that Roberts and Alito will be his models in selecting Supreme Court justices. He has also reversed his past opposition to warrantless wiretapping, suspension of habeas, and exemption for the CIA from military regulations banning torture. Once I thought McCain a bulwark against a Republican field vying to outdo one another in asserting unchecked executive power. No more.

The current election has been a heartening affirmation of democracy. In both parties, the field was wide open and the choices were real. That's doubly true now, because we have one candidate who has promised to roll back the Bush Administration's assaults on civil liberties and one candidate who now promises to continue them. To the present moment, our political system retains democracy's core power -- the power to self correct.

The irony is, we could vote that power away. We could democratically choose to give up the restraints on executive power that guarantee our right to chose. We can choose a president who will appoint judges who in turn allow the President to gut our Constitutional protections. We are one Supreme Court seat away from enabling autocracy.

Clinton to restore civil liberties?

Addled by fury at Hillary Clinton's pandering (gas tax holiday), saber rattling (obliterate Iran), and Rovian attacks on Obama (too numerous for parentheses), I took a cruise through recent speeches look for some ammo to prove a point (never mind).

On that quick skim I was at least reminded that Clinton is a Democrat. And in her April 15 speech to the Newspaper Association of America, I came across the most sustained and detailed promise I've seen from either Democratic candidate that Bush's assault on the Constitution would be rolled back.

Clinton started out by summarizing Bush Administration abuses. No surprise there.

The presidency is not royalty. Our Constitution is crafted carefully to prevent by election what our founders overthrew by revolution. The president is the one elected representative of the whole American people. Our president is balanced by the Congress, which speaks for regions and states, and by the courts, which defend the individual and other important rights against assaults on our liberties.

The president is the only constitutional office holder with the power to speak for all of us and with the potential to unify us in the service of our national interest.

Unfortunately, our current president does not seem to understand the basic character of the office he holds. Rather than faithfully execute the laws, he has rewritten them through signing statements, ignored them through secret legal opinions, undermined them by elevating ideology over facts. Rather than defending the Constitution, he has defied its principles and traditions. He has abused his power while failing to understand its purpose.

This administration's unbridled ambition to transform the executive into an imperial presidency in an attempt to strengthen the office has weakened our nation. It has corrupted and corroded our moral authority and brought our prestige and reputation to its lowest ebb. The president has failed to use the power of the presidency, the power he sought to inflate, to expand opportunity and make a real difference in people's lives.

She went on to express support for enhanced protection for journalists' sources and to promise "a presumption of openness and Freedom of Information Act requests and urge agencies to release information quickly if disclosure will do no harm." A tad ironic, given the Clinton Administration's long struggle to avoid disclosure and release of key documents. But secrecy is relative, and the Bush Administration has made Bill Clinton's look like an open book.

Most important, though, was a set of explicit promises to accept core Constitutional limits on Presidential power:

...because government abuse is checked by the separation of powers, I will restore respect for our co-equal branches of government. I’ll start by limiting the excessive executive powers this president has accumulated, like the unilateral power to wiretap, or detain try people, even American citizens. I will work with Congress again as a partner to solve problems. I’ll end the use of signing statements to rewrite the laws that Congress has passed. I’ll shut down Guantanamo, disavow torture and restore the right of Habeas Corpus.

I will end the practice of using executive privilege as a shield against the public’s right to know and congress’ duty to oversee the president.

Finally I will make crystal clear that the president and the executive branch will comply with the laws of our nation. My Department of Justice will interpret those laws fairly accurately honestly and publically. We’ll release Justice Department interpretations so that you know exactly what our understanding is and how laws are being executed. The President is not above the law in our system of government and we need to make that absolutely clear starting next year. These changes both represent and drive the transformation I believe is needed in our government starting on day one of my administration. I do not believe that power is an end in itself but a means. A means limited in scope of serving the interest and protecting the safety of our nation, while creating opportunity for our people.

Do I believe that Clinton would de-imperialize the Presidency? Not entirely. After this campaign, I don't take anything she says at face value. Nevertheless, here is a series of explicit promises to which she can be held accountable. I’ll end the use of signing statements to rewrite the laws that Congress has passed. I’ll shut down Guantanamo, disavow torture and restore the right of Habeas Corpus.

There's always wiggle room for the shameless, as we've learned from George "We Do Not Torture" Bush. But credit where credit is due - Clinton said what needed to be said here.

Upholding Dodd-ering Civil Liberties

Chris Dodd has pledged to filibuster any FISA bill that grants retroactive immunity to telecom companies that have colluded in the Bush Administration's illegal and unchecked spying on Americans' phone traffic. Here is one response to Dodd's call for statements of support:

While America sleeps, our core Constitutional liberties are being stripped away as the Executive claims power to do whatever it wants to whomever it wants. Astonishingly, the Democrats continue to roll over and ratify the President's right to spy at will on Americans, hold suspects indefinitely without trial, and torture those deemed rightly or wrongly to have information about future terrorist attacks. Chris Dodd has been the only Presidential candidate with the courage not only to speak out in general terms against these outrages, but to take time out from campaigning to arrest the capitulation of the party he wants to lead. Anyone who acts effectively to check the steamrolling of the spineless Democratic leadership on this front deserves the support of all Americans who value the rule of law and the separation of powers.

A Democrat "for" McCain

Financiers, who know how to hedge, often contribute to candidates in both parties. Why not the rest of us? This letter accompanied my contribution today to the McCain campaign:

Dear Senator McCain:

While I will almost certainly vote for the Democratic nominee in 2008, I am contributing to your campaign because I fear for the future of American democracy should a proponent of torture and the destruction of American civil liberties such as Rudy Depends-who-does-it Giuliani or Mitt Double Guantanamo Romney win a major party nomination.

This contribution is to honor your sustained and essential opposition to torture, suspension of habeas, assertions of unlimited executive power, and wholesale flouting of the Bill of Rights. Should you win the Republican nomination, I will rest assured that Americans are not prepared to sell their ancient liberties for a little bit of perceived security.

I should add that I believe that your support of President Bush’s misadventure in Iraq contributed to that disaster; that your campaigning for Bush in the 2004 election helped bring on four more years of assault on our core liberties; and that the ‘compromise’ you green-lighted in the 2006 Military Commissions Act ratified the Administration’s abuses. I am also disappointed by your repudiation of your own principled opposition to the Bush Administration’s irresponsible tax cuts, and by your cozying up to corrupt theocrats.

Nonetheless, on the all-important issue of torture and civil liberties, history will recognize that you stood as the conscience of a party run amok with fear-mongering and power-grabbing.

American democracy cannot function without (at least) two viable major parties. Should you win the nomination, the Republican Party will have taken a giant step toward a return to responsible governance.