Is Barack Obama the civil liberties candidate?

Barack Obama: a timid friend of freedom

Running for office is all about contrasting yourself with the competition, and when it comes to civil liberties issues and the Bush administration, there's a host of material with which to work. Given the Bush administration's miserable record on issues such as due process and privacy, it's a bit mystifying that Obama hasn't taken the opportunity to offer himself as a clearer alternative to the current occupant of the White House.

Just a bit shy

For instance, Obama has promised to "close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists." That's encouraging stuff in the age of the security state, but you'll have to go digging to find it. The candidate isn't talking up his position on the stump, nor is it featured in a civil liberties section on his Website -- because there is no civil liberties section.

The ACLU's seal of approval

That said, Barack Obama has a credible 82% lifetime score from the ACLU, with an 80% rating during the 110th Congress.

As a U.S. senator, the Democratic presidential hopeful voted for an (unsuccessful) effort to block the government "from engaging in massive, untargeted collection of all communications coming in and going out of the U.S." On the same note, he voted (again, unsuccessfully) for stronger legal hurdles before the government could intercept private communications, and favored stripping telecoms of legal immunity for their collaboration with the government in warrantless wiretapping schemes.

Obama also supported the Specter-Leahy Amendment to the National Defense Authorization Act that would have restored habeas corpus rights to people being detained without charges in the course of the "war on terror."

And, the candidate voted for an effort to kill Real ID -- a scheme to turn driver's licenses into national identification cards.

Jarringly, Obama voted to reauthorize the PATRIOT Act even after complaining that it needed greater civil liberties protections. He also voted for the FISA Amendment Act, authorizing warrantless wiretaps and telecom immunity -- and effectively nullifying some of his earlier votes. In doing so, he called the FISA bill a "vital national matter."

I part company with the ACLU when that organization gives Barack Obama a thumbs-up on a vote for hate crimes legislation -- a position he trumpets on his Website. Legislation that penalizes one person more harshly than another for the same violent act, depending on what they were thinking at the time about "sexual orientation, gender identity, gender or disability," puts government in the business of regulating thoughts.

Decriminalize it! No, don't!

On the matter of the drug war, which has crowded America's prisons with nonviolent offenders and its newspaper headlines with tales of little old ladies and dogs slaughtered in the name of prohibition, Obama is an advocate of reform -- timid reform. After first flirting with marijuana decriminalization, he backed off the idea when the Washington Times covered his supposed reformist principles. Obama now supports increased use of drug courts to channel first-offenders into rehab instead of prison. He also wants to "review" mandatory minimums (PDF) and end the bizarre disparity in sentences between powder and crack cocaine. He would also end federal involvement in medical marijuana raids.

These are all worthwhile proposals, but they barely chip at the problems inherent in criminalizing trade in and consumption of popular intoxicants. Even if legalization or decriminalization are off the table, how about stepping down the militarized nature of drug-law enforcement which turns so many encounters with the law into tragedy?

Still, this is probably the best we'll get from a major-party candidate.

Killer instinct

Barack Obama's state of Illinois is home to one of the great object lessons in the flaws inherent in allowing the state to kill in the name of justice. After a series of scandals over legal misconduct in the trials of prisoners who ended up on death row, then-Governor George Ryan commuted the sentences of 167 inmates to avoid the specter of (more) innocent people facing execution. Under the circumstances, Obama's boast that he "drafted and passed a law requiring videotaping of interrogations and confessions in capital cases to ensure that prosecutions are fair" and that "As president, Obama will encourage the states to adopt similar reforms" seems ... rather restrained.

Pro-choice, all the way ...

Obama is a reliable supporter of individual choice on the abortion issue, as well as access to birth control and sex education. No surprise then that he has the enthusiastic support of NARAL, which gives him a 100% rating for his congressional votes. His Website explicitly states he "will make preserving women's rights under Roe v. Wade a priority as President. He opposes any constitutional amendment to overturn the Supreme Court's decision in that case."

... except on self-defense

As much as NARAL likes Obama, that's how much the NRA hates him. While the Democrat says he "believes the Second Amendment creates an individual right, and he respects the constitutional rights of Americans to bear arms," his interpretation of "individual right" leaves a lot of room for restrictions. He supports retaining the restrictions of the Brady Law, supports handgun registration and licensing and voted as a state senator to limit Illinois residents' purchase of handguns. He opposes concealed carry and private ownership of so-called "assault weapons." He may have advocated an outright ban on handguns, depending on whether you believe his explanation about how his "yes" answer to a question on the issue ended up on a questionnaire.

Gun scholar John Lott, Jr. says Obama told him face-to-face, "I don’t believe that people should be able to own guns."

Share the misery

On gay marriage, Obama splits the difference by opposing equal-treatment of same-sex relationships, but also opposing a constitutional ban on the same. That effectively leaves the ball in the states' court, where there's been steady movement toward civil unions and even (in Massachusetts and California) full wedded bliss for gays and lesbians. It's not an especially brave position, but it gets the feds out of the way.

Shut your mouth

The ACLU has rightly spanked Obama for his support of campaign finance restrictions that impose onerous rules on politically active organizations, effectively muzzling free speech. The Obama campaign has also tried to use campaign finance restrictions against his rivals -- Hillary Clinton in particular. Obama isn't alone in being bad on this issue (as I'll discuss elsewhere), but it suggests limited respect for freewheeling political expression.

You gotta serve someone

I've already addressed Barack Obama's enthusiasm for national service -- compulsory national service -- elsewhere, so I won't belabor the point. Suffice it to say that his plan to force high-school kids to work in government-approved schemes is extremely troubling. You either own your life or you don't -- and if a politician is willing to treat people as chattels of the state ... well ... you have to question his overall civil libertarian credentials.

My take

Barack Obama hasn't especially emphasized civil liberties issues in his campaign, but his support for restoring habeas corpus, blocking Real ID and closing Guantanamo by themselves put him head and shoulders above the current president. Add in his taste for some elements of drug-policy reform and his raves from NARAL, and he looks reasonably good.

The problem is that Obama's civil libertarian stances look awfully ... rote. It's almost as if he received his positions from central casting for a Democratic legislator. Pro-choice? Check. Anti-gun? Check. Oppose outrageous Republican wiretapping schemes? Check. Drug reform? Check.

But even his adherence to traditional Democratic positions doesn't seem especially ... passionate. He supported the PATRIOT Act when it seemed convenient, voted for warrantless wiretapping when opposition threatened to draw energy from his presidential campaign, claimed to be pro-gun when the courts and public opinion were obviously moving toward individual rights ...

And wouldn't those security-state powers come in handy for a newly minted Democratic president?

I strongly suspect that none of these issues are especially important to the senator from Illinois beyond their impact on his political ambitions. Looking at the record, it's hard to imagine a President Obama expending much political capital to reform the death penalty, ameliorate drug prohibition or rein-in the "war on terror" brigades -- or, on a positive note, to ban guns and impose national service.

But, after eight years of George W. Bush, even that much is refreshing.

Contact J.D.: civilliberties (at) tuccille.com