Is Obama or McCain better on civil liberties?

October 2, 7:16 AMCivil Liberties ExaminerJ.D. Tuccille

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Barack Obama: Better than McCain

Americans have a big decision to make in the weeks ahead. Do they want their fate in the hands of an old soldier or a young community organizer? Which one will better safeguard their liberty and keep the meddlesome hands of the state from fiddling too terribly much in the life of the individual?

First, though, a reminder of a caveat I wrote back in August: "Candidates can certainly telegraph their future performance, but the message is often mixed -- and we tend to see what we want to see." I went on to warn that once presidents take on the vast powers and enormous responsibilities of the White House, their reactions may be at odds with their earlier promises. Woodrow Wilson's brutal authoritarianism, for example, including the jailing of political dissidents, couldn't have been clearly forecast based on his campaign statements or even his long years of clamoring for a more-powerful presidency.

That said, we have to work with what we have. So, which is the friend of liberty -- at least in the social sphere? Is it Barack Obama or John McCain?

Let's get the anticipation over with: While he's a lukewarm advocate of personal freedom, of these two candidates, Barack Obama wins the nod on most counts, and it's not especially close. (But wait for the final answer.)

John McCain has proven to be an enthusiastic cheerleader for the security state. He's voted for every measure to expand the government's surveillance powers, he's opposed every measure to rein-in those powers, he favors the use of extra-legal military commissions (which have been denounced as rigged by their own prosecutors) to try terrorism suspects and opposes the restoration of habeas corpus rights to those suspects.

Disappointingly, Barack Obama voted for expanding the government's power to engage in warrantless wiretaps and to renew the frightening PATRIOT Act. But he also 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."

Obama also favors some elements of drug policy reform, such as revisiting mandatory minimums, ending the bizarre disparity in sentences between powder and crack cocaine and pulling in the federal governments horns in terms of targeting medical marijuana users. John McCain, on the other hand, favors ever-tougher drug prohibition.

Obama is also reliably pro-choice on abortion and related reproductive rights, while McCain favors strict controls.

The only area where McCain has a clear advantage over Barack Obama is on the right to bear arms. McCain's record on this matter has been mixed, but Obama's record is abysmal, despite his recent claims to be a born-again fan of the Second Amendment.

But ...

One big area of concern about both John McCain and Barack Obama involves free speech on political matters. To put it bluntly, they're both against it.

McCain's name is attached to the horrendous McCain-Feingold law which, the ACLU said, "contains an unprecedented attack on issue advocacy by nonpartisan groups and organizations." The senator from Arizona really seems to think political debates should be confined to formal exchanges between recognized political candidates.

Obama also supports "campaign finance" restrictions on political speech, even to the point of filing complaints against groups that favor his political opponents. More recently, his campaign has taken to threatening broadcast stations with possible FCC action if they run NRA ads hostile to the Illinois's senator's record on gun rights. That's a potent threat coming from a political candidate who may soon have the power to determine FCC policy.

And yes, before Obama's "The Wave"-like minions remind me that Factcheck.org found fault with those ads, I'll point out that Factcheck.org's take has itself been fact-checked by knowledgeable scholars -- and found wanting. At the very least, the issue should be settled by public debate, not censorship.

I'm also, as I've written, not fond of Obama's plans for mandatory national service. That displays a disturbing disregard for the autonomy of the individual.

But, in a year when one candidate can say, "each and every one of us has a duty to serve a cause greater than our own self-interest," and the other says, "individual actions, individual dreams, are not sufficient. We must unite in collective action, build collective institutions and organizations," the focus is clearly not on individual freedom. We have to take what we can get.

And Barack Obama is clearly superior on most civil liberties issues to John McCain.

So the best candidate is ...

Whoa, hold on there!

Despite what the media tells you, John McCain and Barack Obama are not the only candidates running for president. Libertarian Bob Barr, a former congressman, is also running, as is the Green Party's Cynthia McKinney, another one-time federal lawmaker, independent candidate Ralph Nader and Constitution Party hopeful Chuck Baldwin.

Before you settle on a candidate, look at them all.

Bob Barr: Better than Obama

In particular, I think Barr is worth consideration. He's a former drug warrior and PATRIOT Act supporter who grew disgusted by the reality of what he once advocated, and ended up working with both the ACLU and the Marijuana Policy Project.

Imagine that. A politician who learns from experience that interfering in people's lives may be a bad thing.

Barr opposes the security state, warning that "[t]he administration and its supporters have used the terrorist attacks of September 11 as an excuse for a host of power grabs." He opposes warrantless wiretaps and supports the return of habeas corpus rights to terrorism suspects so that they can have legitimate trials to determine their guilt or innocence.

The former prosecutor and one-time eager prohibitionist has notably had an "oh sh-t" moment on drug prohibition, acknowledging that "the war on drugs -- it's a failure." He joined the Marijuana Policy Project to lobby for protections for medical marijuana users and providers -- an end to federal raids being a big such improvement.

Barr's support for alternatives to drug prohibition isn't the enthusiastic embrace of a libertarian true-believer, but rather the resignation of a realist who is tough enough to concede that his once-preferred policies have produced a little taste of Hell on Earth. Honestly, real reform is going to require a lot of similar changes of heart.

On same-sex marriage, Barr isn't, unfortunately, a thoroughgoing equal-rights guy, but he did applaud California's recognition of the rights of gay and lesbians to marry, thinks states should be left free do to exactly that and wants to repeal the Defense of Marriage Act. That puts him in the same not-quite-there camp as Obama. He also wants to dump the military's pernicious don't-ask-don't-tell rule.

On the right to bear arms, Barr was one of those few legislators who became increasingly wary of government restrictions the more time he spent in Congress. According to Gun Owners of America, "his voting record after his first term in Congress improved tremendously (voting right in 27 out of 31 votes) -- a record that is certainly better than 99 percent of most Republicans and Democrats." He now opposes "any law requiring registration of, or restricting the ownership, manufacture, or transfer or sale of firearms or ammunition to law-abiding citizens."

And Barr, thankfully, opposes the whole apparatus of restrictions on free speech cloaked as "campaign finance reform." It's not just political speech, either; he recently told Reason magazine that restricting so-called obscenity is not a "legitimate area for the government to be involved in."

None of this is to say that Barr is perfect. In particular, he's absolutely terrible on reproductive rights, even though his second wife had an abortion. If this is your make-or-break issue, look elsewhere.

In short, Barr is good on privacy, due process, free speech and the right to bear arms. He matches Obama on same-sex marriage and is bad on reproductive rights.

Do I have to mention that he opposes the hideous financial bailout scheme?

In a year in which perfect isn't on the ballot, Barr looks pretty good.

But don't take my word for it, especially given the caveat I gave regarding the miserable reliability of predictions about the performance of candidates once they win office. Take the time to look at all the candidates -- not just the donkey and the elephant -- and make up your own mind.

As far as my take goes, it appears to me that Barack Obama is clearly better on civil liberties than John McCain, and that Bob Barr is better than Obama.

After a difficult stretch of years, we need a whole lot of "better" on civil liberties.

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