Obama: Advancing Civil Liberties in the Face of Difficult Constraints

My opening statement for the debate at the ACLU Santa Cruz Annual Dinner, Nov 18, 2009:

Thank you for this opportunity to present the civil liberties record of President Obama. I believe that record is already impressive, and I believe it promises to be historic.

Before I begin, let me emphasize that although I worked for President Obama’s election campaign, I do not work for the Obama administration and I speak only for myself here this evening.

When then-Senator Barack Obama was considering whether to run for president, his advisers asked him the simple question that all candidates must be able to answer: “Why should people vote for you?” Part of his answer was this: that on the day he took the oath of office, there would be children all over America who would think differently about what was possible for them.

So let’s begin by recognizing the magnitude of President Obama’s first civil liberties achievement: getting elected.

In hindsight, the success of the Obama campaign can look inevitable. But at the outset, the only thing that looked inevitable to most observers was that it would not succeed, that it was at best a dry run for the future. Well, facing incredibly steep odds, Barack Obama brought the future into the present.

He had some great talent helping him. But I can tell you that there was never any question who was running things, and that was Barack Obama himself.

His success was a fulfillment of Martin Luther King’s dream. Obama’s thousands of campaign volunteers and staff looked like America. And they worked their hearts out for him, not because they were the same color as he – most of them were not – but because of the content of his character.

On the morning after the early success in the Iowa caucuses, my friend and former boss Michael Blake was talking with Reverend Joseph Lowery, a co-founder with Dr. King of the Southern Christian Leadership Conference. Reverend Lowery was showing Michael his new iPhone, and marveling over all the things it could do. He said, “Michael, I wish I could use it to call back into the past. I’d call Martin. I’d say, ‘Martin, I’m looking at the front page of a newspaper that says an African-American is the front-runner to be President of the United States.’”

That story reminds me of how unlikely, and how important, President Obama’s election was.

But I know that this evening what we’re most interested in is what the president has done since he was elected.

What he has been doing is fulfilling his promises, as quickly as he can, and more quickly than many of us would ever have thought possible.

For this early part of his term, President Obama has had four top domestic priorities and two top international priorities. The domestic priorities are the economy, health care, energy and education. The international priorities are restoring our international standing and withdrawing our troops from Iraq, while refocusing on Afghanistan and Pakistan.

Why these priorities?

As we know too well, when Obama took office, the economy worldwide was in a state of crisis, teetering on the edge of collapse. Clearly that had to be priority number one.

Our health care system threatens us with another economic crisis in the not too distant future. Right now it leads to unnecessary bankruptcies, illnesses and deaths.

Energy must be a priority because our reliance on fossil fuel distorts our foreign policy, threatens our security, pollutes our environment and is raising the risk of a climate catastrophe.

We must address education because it is the foundation of our prosperity and our freedom, and that foundation is in disrepair.

Our international standing was deeply damaged by the actions of the previous administration. These included an unnecessary war, the sanctioning of torture, the neglect of the Middle East and a generally aggressive, unilateral posture in international relations.

And finally the war of choice in Iraq, coupled with the neglect of Afghanistan and Pakistan, has resulted in terrible losses of life and treasure while making America and the world less secure.

Clearly, these are top priorities for all of us. And yet we might ask, “Where in that list are civil liberties?” The answer is that they are woven into the very fabric of the president’s priorities.

Domestically, when the economy declines, minorities and the poor are the first to suffer. When health care is inadequate, they feel more of the pain. The economic and environmental costs of our energy policies fall most heavily on them. When schools fail, it is most often in minority and poor communities.

Internationally, both our greatest asset and our greatest protection is other people’s faith in our democratic values. President Obama knows that while we have by far the world’s most powerful armed forces, more powerful still are the civil liberties those forces are charged with protecting.

So where are we now on these top priorities? Here is just some of what President Obama has done in the past ten months and two weeks:

His economic stimulus has rescued the world economy from collapse, avoiding the risk of a second Great Depression. He has led us to the verge of passing the most significant health care reform in 50 years. On energy, he has increased fuel efficiency standards, directed billions of dollars in stimulus investments to alternative energy and is about to lead the way on Cap and Trade legislation to control carbon. On education he is pursuing a range of proven innovations and has invested many billions of stimulus dollars in educational reform.

He is on schedule to remove American troops from Iraq and has refocused military and aid-based efforts on the now hugely difficult situations in Afghanistan and Pakistan. With his speech in Cairo and other actions, he has transformed relations with the Arab world. He is reaching out to other countries across the globe, notably long-neglected Latin American nations at the Summit of the Americas. On his Asian tour, the president has promoted mutual respect with advocacy for universal human rights, the resumption of talks between China and the Dalai Lama and the release by Myanmar of Aung San Suu Kyi.

Because of Barack Obama’s efforts, the United States has already regained its standing as the most respected country in the world, after falling far down the list during the previous eight years.

I’d say that’s not a bad record for ten months and a couple of weeks.

But it’s only part of what President Obama has done and is doing.

On January 21st, the day after he was sworn in, the president revoked an executive order by President Bush that had severely restricted access to presidential records. The same day, President Obama issued a Memorandum on Open Government. This has shifted all government operations towards transparency, and led to innovations such as Data.gov, a website that for the first time makes huge amounts of detailed government information accessible online, for free. Also on January 21st, the president signed ordered the highest-ever standard to control influence on his administration by lobbyists.

The next day saw executive orders for the closure of Guantanamo Bay within a year, a comprehensive review of detention policies, and a ban on the use of torture.

On January 29th, the president signed the Lily Ledbetter Fair Pay Act, which removed a statute of limitations on equal-pay lawsuits, thereby helping ensure that women receive equal pay for equal work.

The following day he signed three executive orders strengthening protections for the rights of employees under federal contracts.

In February, he created the White House Office of Urban Affairs Policy, with the goal of reversing decades of inattention to cities.

In March, he created the White House Council on Women and Girls, whose cabinet-level appointees are charged with ensuring that the federal government accounts for how its actions affect women and families.

More recently, the Federal Communications Commission has begun writing regulations that will give net neutrality the force of law, requiring Internet access companies to treat all data the same.

On October 28th, the president signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Named for the victims of two horrendous murders, this act expands hate crime laws to cover gender, sexual orientation, or disability.

During the campaign, candidate Obama called for the repeal of the Defense of Marriage Act, which among other things defines marriage as between a man and a woman. As is usual, President Obama’s Justice Department has continued to enforce this existing law while it is still on the books. But the president and Attorney General Eric Holder have stated clearly that the administration disagrees with this law, and that the president will sign a repeal as soon as Congress passes it.

President Obama is strongly supporting the Employee Non-Discrimination Act and it looks likely that it can pass the Congress too.

Candidate Obama promised the repeal of the military’s Don’t Ask, Don’t Tell policy. Secretary of Defense Robert Gates has said the repeal will likely happen in the coming year.

Also expected in 2010 is comprehensive immigration reform. This reform will include a path to legal status for undocumented workers who are here now, and related protections for the wages of legal residents.

This is some of the progress we’ve seen in policies and laws, either accomplished or in progress. But a president also has influence through the appointments he makes. Let’s take a look at some of this president’s appointments.

Most notable so far is the confirmation of Sonia Sotomayor as the first Latina ever to serve on the Supreme Court.

President Obama’s diverse range of appointees also includes Hillary Clinton as Secretary of State, Kathleen Sibelius as Secretary of Health and Human Services, Janet Napolitano as Secretary of Homeland Security, Susan Rice as United Nations Ambassador, Eric Holder as Attorney General and Dawn Johnsen, formerly of the ACLU and NARAL, as the head of the Office of Legal Counsel, or OLC. Ms. Johnsen was a leading critic of the Bush administration’s OLC over the authorization of waterboarding and other forms of torture. Her confirmation is being held up by Republicans in Congress, who are also stalling on a list of other nominees.

At the Department of Justice, Attorney General Holder has been working hard to repair the damage done by the previous administration’s placement of politics above the law. As part of this repair, he has restored the Civil Rights Division to its intended role.

Under the Bush administration, career civil rights lawyers were replaced by political hires with little relevant experience, or by people whose experience was in defending against civil rights enforcement. The new head of the Civil Rights Division, sworn in last month, is Tom Perez. Wade Henderson, the head of the Leadership Conference on Civil Rights, calls Mr. Perez “arguably the most well-qualified individual ever nominated for the position.”

Among Attorney General Holder’s other actions have been the release of the torture memos written by the Bush administration’s OLC, and the recent decision to try five of the most important Guantanamo Bay detainees in civilian court. This latter decision was described by ACLU executive director Anthony Romero as “an enormous victory and an enormous step forward restoring the rule of law”.

But impressive as all of this is – and I think it is strikingly impressive – I know that neither Mr. Romero, the ACLU, nor in fact any of us is 100% satisfied with President Obama’s achievements so far. I don’t think I’m going very far out on a limb to guess that President Obama is not 100% satisfied.

Let me introduce those “difficult constraints” mentioned in my topic.

The first constraint among all others is one that I think a surprising number of us forget: We did not elect a dictator or a god-king. He’s the president. And as powerful as the president of this country is, he cannot just snap his fingers and change the law or change reality.

I’ll grant you though that the previous vice president gave both of those a good try.

Let’s look at one of the areas where ACLU director Romero feels President Obama has fallen short: closing down Guantanamo and giving detainees fair trials. Although the president signed that executive order in January calling for the closure of Guantanamo within one year, there is now concern that that deadline will be missed. And on the detainee trials, while I believe it is both politically brave and ethically right to try those five detainees in civilian court, it looks likely that some others will go before military tribunals, and some may continue to be detained indefinitely with no trial.

Let’s look at these one at a time.

Why hasn’t Obama simply closed Guantanamo, with no delay? One big obstacle is that the people currently in Guantanamo have to go somewhere. Last spring the administration sought 80 million dollars from Congress to pay for transferring Guantanamo detainees to maximum security prisons in the United States. The Senate voted 90 to 6 against it. Part of that may have been because White House staff could have done a better job of addressing Congress members’ concerns about how the transfer would be handled. But some of it was just fear, and Republicans used the vote as an opportunity for politically motivated fear-mongering.

Meanwhile almost no other countries will accept detainees from Guantanamo either.

So closing Guantanamo is taking longer than planned. But the Obama administration has kept working to move things forward. On October 21st, Congress finally approved nearly 43 million dollars to pay for transfers, so that detainees can be tried on US soil – but imprisoning them here after trial is still forbidden. Work continues.

What about those military tribunals? Why hasn’t Obama committed to trying all the detainees in civilian court? If we don’t do that, how can we claim that we really do offer justice for all?

The president’s first responsibility is to protect the American people. He is also sworn to uphold and defend the Constitution.

Thanks to the abuses committed by the Bush administration, dealing with the detainees put these two fundamental responsibilities into conflict. President Obama, a former professor of constitutional law, knows this all too well. And, unlike the previous administration he does not intend to sacrifice one in favor of the other. In his major speech on National Security on May 21st of this year, he said, “…I believe with every fiber of my being that in the long run we… cannot keep this country safe unless we enlist the power of our most fundamental values.”

The president believes that our security – his first responsibility – requires that some of the detainees’ cases be heard by military tribunals. Trying these detainees in court might expose intelligence methods or sources, expose trial participants to risk, or disallow evidence that would convict them, but which is tainted because of torture or other abuses.

Now, under President Bush, Barack Obama and many of us found the use of tribunals unacceptable. Why should we accept them now?

Because we can make them better. The president is committed to establishing “a legitimate legal framework with the kind of meaningful due process rights for the accused that could stand up on appeal.” The president said, “We will no longer permit the use of evidence… that [has] been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms, among others, will make our military commissions a more credible and effective means of administering justice, and I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on legislation to ensure that these commissions are fair, legitimate, and effective.”

So, we will make the tribunals better. Not perfect, but better. Perfect is not available here.

Now we turn to those detainees who may be detained without trial, for we don’t know how long.

In his speech, Obama called this the toughest single issue in connection with detainees.

Many find it shocking that the United States would consider indefinitely detaining anyone without trial.

And many – including me – are skeptical of the whole idea of a “war on terror”, because it sounds potentially unbounded in scope or duration.

The fact remains, though, that there are people who are at war with the United States, who were captured on a field of battle. They are prisoners of war, and prisoners of war are detained – if they haven’t been killed.

But here too, Obama is pursuing what he calls “clear, defensible, and lawful standards.”

In his National Security speech he said, “In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight… my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.”

In trying to clean up this horrendous legal, political and diplomatic mess left by his predecessor, President Obama must deal with understandable suspicion from those who recognize how often national security has been used as an excuse to violate civil liberties.

But just because this happens, it does not mean that it has to happen. And it does not mean that there is no such thing as a legitimate national security risk.

As you listen to what Obama says and watch what he does, you will notice how closely he hews to the concept of legitimacy, meaning action that is based in the law.

We are a nation of laws. And Obama shows his belief in that principle by his actions. Faced with reconciling his fundamental responsibilities to the people’s safety and to their rights, at every step he is ensuring that he himself will be governed by the law, as every president and every American must be.

There are other examples we can discuss wherein Obama has faced great difficulties while defending civil liberties. We could talk about the coming end of Don’t Ask Don’t Tell, the repeal of the Defense of Marriage Act, or the difficult decision on the release of the torture photos. In the interest of time, I will leave those for later in the debate.

Lately the story has taken hold in some circles that the president who made so many promises as a candidate has yet to achieve much in office. I find that version of reality astounding.

Think about what I’ve recounted this evening – saving the world economy, on the verge of the greatest health care reform in 50 years, reviving the Department of Justice, and on and on. Imagine accomplishing all that in less than a year – and bear in mind that I’ve had to leave out a great deal for brevity’s sake. Go to barackobama.com and look up the list of Obama’s campaign promises, which is still there. You’ll see that President Obama has been doing what he said he would do, working his way down the list.

On the Obama campaign, one of the highest forms of praise was to be told you were “gettin’ it done”. On civil liberties, as on so many other critically important priorities, President Obama is gettin’ it done.

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