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The Problem For Civil Libertarians

[ 149 ] February 9, 2012 |

Like Glenn, I’m dismayed by polling showing widespread support — including among Democrats and liberals — for arbitrary executive power in the “war on terror.” But I take somewhat different lessons from it. Glenn sees this as above all as evidence of tribalism — that liberals only oppose violations of civil liberties when a Republican is in the White House. While I’m sure that partisan considerations affect popular support for these actions at the margin, I think the primary issue is somewhat different and much more disturbing: namely, that civil liberties don’t just have a strong political constituency no matter who’s in the White House.

If this were primarily about tribalism, then one would expect Democrats to rally strongly around Obama when he took a position more civil libertarian than the status quo. But, to put it mildly, this didn’t happen. When Obama tried to close Gitmo, not only was this unpopular with the public, but the Senate vote blocking it was 90-6, not just some conservative Democrats collaborating with Republicans. A lot of blue-state senators, at a minimum, believed that preventing the president from closing Gitmo wouldn’t extract any political cost, and of course they were right. The expenditure of political capital to try to give Khalid Shaikh Mohammed a civilian trial is a similar story — unpopular with the public as a whole, and finding himself without support either in Congress or with politicians in New York (including the Democratic governor.)

It’s easy to forget this if you spend a lot of time online, but people strongly committed to civil liberties are a minority among liberals, let alone the population as a whole. This is the central reason why the number of modern presidents with good records on civil liberties is “none”: the lack of a constituency for civil liberties means that presidents can (within reason) only pay a political price for being too protective. Presidents can’t even count on the support of their own partisans when they try to protect the rights of unpopular minorities or individuals. This absolutely doesn’t mean that presidents don’t have substantial discretion and especially doesn’t mean that the actions of presidents that violate civil liberties shouldn’t be criticized — civil libertarians should do what they can — but this is the political landscape we’re dealing with.

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  1. JMG says:

    Polls have shown for as long as they have taken polls on the subject (a long time indeed) that majorities of Americans oppose about every item in the Bill of Rights, and to some extent, democracy itself.
    The only right our society truly cherishes is the right to fuck other people over if we don’t like them.

  2. actor212 says:

    It’s easy to forget this if you spend a lot of time online, but people strongly committed to civil liberties are a minority among liberals, let alone the population as a whole.

    The Paultards give us true libertarians a bad name.

    My position is this: civil liberty should be the default position of any governance or legislation, barring an overriding concern.

    If, for example, we lived in Israel, there’s a pressing need there to screen commuters for explosives, because it has been an almost daily occurence.

    Here, not so much. Here, I oppose it, except when I get on an airplane but then I buy my ticket with that in mind. I can opt not to take a trip. But even in that instance, with as few actual bombings/bomb attempts as there have been, the default should lie in civil liberties.

    Libertarians, at least the ones I talk to…you know, sane ones…adjust their libertarianism for the fact that people are human, and we have to live in societies, and not everyone is going to be as…benificient…as I might be in terms of not doing others harm

  3. It’s hard to imagine that Dems and liberals would approve of such policies in quite these numbers if they had been authored by George W. Bush.

    Phrases like “It’s hard to imagine that…” are used when you want to make a claim for which you have absolutely no evidence, but are quite attached to for reasons having nothing to do with evidence.

    There is nothing outside of the wishful thinking of people like Greenwald and Sargaent to suggest that any liberals are judging the actions of Obama and Bush using different different standards. Has anyone ever seen the people making this claim offer any sort of comparative polling data to back it up?

    There is a species of media critter, best exemplified by centrists like David Broder but coming in leftist, rightist, and libertarian flavors as well, that bases a powerful sense of their own moral and intellectual superiority on a “pox on both houses” narrative. To keep the impression alive, it’s important to them to dismiss those who do claim to see a difference as having corrupt, base motives, as opposed to an actual disagreement on issues.

    Perhaps it’s because I spent the years of the Bush administration arguing with libertarians, but I figured out quite early on that a lot of the people who opposed the Iraq War and didn’t like George W. Bush were not in absolute lock-step with me on other questions, like the prosecution of the war against al Qaeda. Why can’t people like Greenwald and Sargant?

    • david mizner says:

      Common sense should be permitted. If you don’t think there would’ve been a bigger outcry in these parts of George Bush had been a drone-crazy as President Obama, or had codified indefinite detention, then I’ve got beachfront property at Bagram….

      Incidentally, that’s an issue not necessarily tied to polling. Many of the Democrats playing down or apologizing for the horrible parts of the NDAA would in a poll still say they oppose the horrible parts of NDAA. Likewise on drones.
      This concerns the civil-liberty support liberal minority — the intensity and breadth of which fluctuates depending on the president.

      On polling, we can argue about how responsible the President is for the continued existence of Gitmo, but if he had succeeded in shutting it down, certainly a big majority of Dems would’ve supported the decision (unless closing it down entailed creating a Gitmo-north in the U.S.) Tribalism is just harsher name for partisanship.

      • Maybe I’m nit-picking here, but what the hell do drones have to do with civil liberties issues, all of a sudden? Wouldn’t that be a conduct-of-war issue, if anything?

        • david mizner says:

          Yes and no. Drones are certainly larger than a civil liberties issue, but the U.S. killed al-Alwaki with a drone strike, arguably violated the 5th amendment, which prohibits the taking of life without due process.

          But I agree “civil liberties” is too narrow a term if you’re talking about drones.

          • John says:

            If an American citizen was serving in the Wehrmacht during World War II (and I’m sure there were more than a handful who were), would it have violated the 5th Amendment to kill him?

            If it didn’t, how is that hypothetical case different from Awlaki’s case?

            If it did, aren’t we granting American citizens the right to make war on us without fear of military retaliation?

            • The al-Awlaki matter, or at least the way it’s argued, just seems bizarre to me. We’re supposed to take the extremely narrow set of circumstances that has a person not only accused of actively aiding a group the U.S. has formally authorized military action against, but who is also indisputably shacking up with other open members of said group in a remote mostly un-governed part of Yemen and extrapolate this to a concern that any American vacationing in London or Paris needs to be worried that their government can kill them on the streets if they want to? Yeah, okay.

              If more people paid attention to the arguments, I might even wonder if this wasn’t part of why Greenwaldian civil libertarians didn’t gain more traction with the mass public.

              • Jesse Levine says:

                The government has never produced a shred of evidence that he was even close to the status of an enemy combatant. It opposed his father’s attempts to legally compel production of that evidence in advance of killing him, and has not even, post facto, disclosed anything beyond rhetoric to show the killing was justified. Worse, it refuses to release the legal memorandum that purportedly justifies the killing. The difference between that and killing someone in an enemy uniform in combat is manifest. Secret tribunals acting under secret laws undermines basic notions of law and justice.

              • david mizner says:

                The point is that the government is assuming the authority to kill you without due process, that we’re giving the government the power to secretly determine who the bad guys are and to kill them without a trial or even producing evidence. You might feel confident that the government won’t use this power to kill an upper middle class white person, and you’re probably justified in feeling that way, if that makes you feel better. But you shouldn’t feel confident that the government won’t use this power to kill innocent people given it’s well established track record of detaining innocent people and sending innocent people off to be tortured, etc.

                Anybody who says, Yeah, but the government would never do that, simply doesn’t care about civil liberties and doesn’t appreciate the threat posed by unchecked government power.

                • “The point is that the government is assuming the authority to kill you without due process…”

                  No they aren’t, you just think they are because you’re opportunistically conflating “due process” with “a trial in court.”

                  And again, you’re just totally eliding the relevant fact of where al-Awlaki was and who he was with, which of course makes a rather big difference. It’s not like al-Awlaki fled the country and sought asylum in Canada or Sweden ferchrissakes.

                • david mizner says:

                  Wow. You actually think al-Alwaki was given due process.

                  You’ve gone from merely wrong to laughably batshit wrong.

                  For future reference, the “reasonable” talking point is that the government isn’t required to give him due process.

                • “Wow. You actually think al-Alwaki was given due process.”

                  That’s a matter of debate, but I think there’s a mighty good case to be made that that is the case for a person who was suspected of being an active AQ operative who subsequently went to live with other AQ members in an untouchable area of Yemen.

                  Or perhaps skirting the due process question, it seems like there’s a good case to be made that he was a legitimate military target based on the facts at hand.

              • Dan Miller says:

                Is it really that hard to understand why people would be worried? After all, just recently a Canadian citizen was accused of terrorism for tweeting that his sales team should blow away the competition at a trade show. Forgive me if I don’t want those people to have carte blance on killing me if I travel abroad.

                http://ozhouse.org/2012/02/05/canadian-tele-comms-sales-manager-becomes-terror-suspect-for-blow-away-the-competition-tweet/

              • wengler says:

                Congress declared war against Germany.

                I guess the September AUMF says the President declares war against anyone anywhere.

            • david mizner says:

              Well that’s what neocons (and others, admittedly) argue: that the battle against AQ is just like a conventional war with the entire world as a battlefield. But a lot of us — though not so many anymore — argue that to treat this as a war is national security and human rights disaster.

              If the U.S. were smart and humane, it would declare victory over AQ and revoke the 2001 AUMF, the ostensible authority for this worldwide terrorist-creating, rights-violating, civilian-killing, money-devouring war.

              • “Well that’s what neocons (and others, admittedly) argue: that the battle against AQ is just like a conventional war with the entire world as a battlefield. But a lot of us — though not so many anymore — argue that to treat this as a war is national security and human rights disaster. ”

                Well that’s all well and good, but it doesn’t change the cold hard fact that the United States Congress authorized military action against al Qaeda, as did the Security Council, though in somewhat more opaque terms.

                (Though I am of course aware that in your world such facts are wholly subordinate to your own personal feelings in terms of deciding pretty much everything.)

                • david mizner says:

                  I guess you missed my last paragraph, in which I mention that 2001 AUMF. It should be revoked. I don’t know what Security Council res. you’re referring to.

                  Incidentally, a law passed by the United States Congress doesn’t permit the United States to violate the sovereignty of other countries and generally make a mockery of international law.

                • No, david, you missed the part where Brien tried to explain the difference between what you think “should be” the legal situation, and the actual legal situation.

                  It’s not a civil liberties violation to fight the other side in a war, even in a war that david mizener thinks “should be” ended.

                  a law passed by the United States Congress doesn’t permit the United States to violate the sovereignty of other countries

                  This just in: a legal state of war does not change the legality of taking military action in other countries. I’ll bet you didn’t know that!

                • “No, david, you missed the part where Brien tried to explain the difference between what you think “should be” the legal situation, and the actual legal situation”

                  I think even that is giving him too much credit, as he’s actually conflating what he thinks *should* be the case from a policy standpoint with what *is* the case from a legal standpoint.

                • gmack says:

                  No, david, you missed the part where Brien tried to explain the difference between what you think “should be” the legal situation, and the actual legal situation.

                  OK, I get that. But isn’t this just the nature of political practice/rhetoric? When, for instance, Proudhon declared that “property is theft,” he clearly was not describing the actual state of the law, but rather extending the concept of “theft” into a new domain. This move, moreover, invites us to see things in new ways or ask questions we didn’t ask before. So while it might be true that the killing of Al-Alwaki was authorized by the AUMF, I see no problem at all for a political activist to say that the killing was an illegal exercise of executive authority.

                  Whether I agree with that judgment is a different matter, by the way. My only point is about the grammar of political judgment, not the content of this particular judgment (or Proudhon’s, for that matter). Political language does not and need not be exhausted by official and legally recognized meanings, and indeed often is precisely the effort to extend concept in unexpected ways.

                  Or shorter me: I may or may not disagree with Mizner’s political judgment that the drone strikes are violations of the law, but whether they are officially allowed by the law is not, in my opinion, the decisive question.

              • Hogan says:

                ” . . . arguably violated the 5th amendment” is a legal judgment, not political rhetoric.

                • Also, Proudhon was making a philosophical point, whereas Minzer is merely trying to build a “factual” case to make actual reality conform to his views of it (hence, lumping drone strikes in with civil liberties, referring to “strikes” as a plural when he goes on to admit he was referring about the case of one person, refusing to acknowledge that Obama did attempt to close Gitmo, etc).

          • Argument by euphemism is fun, isn’t it?

      • Common sense…

        Ah, another popular cry by people talking out of their ass.

        How about, “Everone knows that…?” Stalin’s favorite was “It is well known that…”

        Still nothing in the way of evidence. Just the same unsupported certainty.

  4. david mizner says:

    Both you and Glenn are right. There’s generally not strong support for civil liberties or human rights more broadly — which is one of the reasons political leadership on these issues is so important — and that there’s no question that if Barack Obama had been less conservative on these issues and not effectively given bipartisan sanction to many aspects of Bush’s Terror War, the poll numbers would be much better right now.

    On that last point, the poll you link to isn’t about closing Gitmo but about the KSM trial. Here’s the relevant stat:

    http://equalityanddemocracy.org/?p=89

    In February 2009, one month after Obama took office and when it was still believed he would close Guantanamo, 64% of Democrats supported its closure.

    • Which is just to say that 1/3 of Democrats thought that the Democratic President was being too protective of civil liberties. How does that discredit the above point?

      • david mizner says:

        Three years ago, as Bush gave way to President Obama, a strong majority of Dems want it closed; now a strong majority want it to stay open.

        • Well, okay, I’ll take you at your word because…that wouldn’t really comport to Presidential preference, would it? Given that Obama tried to close Gitmo only to be met with stiff Congressional opposition and all.

          • John says:

            I think the official argument here is that Obama didn’t *really* want to close Gitmo?

            • david mizner says:

              The primary problem with Gitmo was never the physical space called Gitmo but the system on injustice called Gitmo. It was and is impossible to close down the system of injustice called Gitmo if you support indefinite detention. President Obama was hoping to transfer the system on injustice to the United States.

        • Three years ago, as Bush gave way to President Obama, a strong majority of Dems want it closed; now a strong majority want it to stay open.

          Link?

          The poll from the WaPo doesn’t break down the results by party.

          As opposed to the poll I provided, which shows that the shift in overall public opinion is a consequence of independents changing the minds, while Democrats and Republicans stayed the same.

    • And here’s another story about a Gitmo poll, from a year later:

      The poll, released Sunday, suggests independent voters are contributing to the 12 point overall drop.

      “Just Democrats still think that Guantanamo should be closed, but Independents have completely changed – from an even split in January 2009 to three-quarters who want to keep the facility open today,”

  5. Dirk Gently says:

    I think it’s even worse than that: it isn’t necessarily that people do not care about civil liberties, it’s that they barely understand what they are. That is, people are simply not making the connection between KSM and their own civil liberties; they are not understanding (if they even know about) how domestic spying, drones, and executive privilege in detaining people could in theory be used against them personally, or how this is a problem even in principle. Bromides about “freedom” are more than enough to stifle their imagination.

    • Well, that’s probably in large part because it’s highly unlikely that lethal drone strikes or arbitrary and indefinite detention ordered by the President will in fact happen to Susie Johnson in BFE, Nebraska. QED.

    • Njorl says:

      I thought Obama should have given a speech before signing the NDAA saying that Congress had just voted in overwhelming numbers to allow him to imprison Congress and the Supreme Court indefinitely without trial. While it would be possible for people to pursue due process for the release of Congress, he had the right to imprison those people as well, before they managed to complete the legal process involved.

      • mark f says:

        Fox News: Obama Threatens to Imprison Congress, Supreme Court Over War on Terror Differences.

      • You want the President to lie to Congress?

        Using the law’s detention powers against people who are not a part of al Qaeda would be a violation of the law.

        • lawguy says:

          Unless of course the administration alleged that they were part of some organization helping AQ.

          • Nope. It is not legal under this law to put people who are not affiliated with al Qaeda into indefinite detention, even if you allege that they are. Detaining people based on an allegation that isn’t made in good faith would be false imprisonment, just as sure as if a cop didn’t like your face and alleged that he saw you selling heroin.

            Noting that people can be put into detention if someone in the government violates the law doesn’t tell us anything about what is allowed under the law.

            • lawguy says:

              Well Obama was able to kill a guy and then his kid with secret evidence that he can’t show. On the other hand the guy and his kid were both kind of brown and had a weird religion, so I guess that would be different.

            • DocAmazing says:

              just as sure as if a cop didn’t like your face and alleged that he saw you selling heroin

              …’cuz that’s sure never happened under our system of laws.

            • Njorl says:

              The cop can put you in jail, but he can’t keep you there indefinitely, nor can he prevent you from suing him for false arrest.

              This law allows the president to defeat every possible remedy to his abuse of this law.

              • Well, other than the court system ruling it un-Constitutional.

                • Njorl says:

                  Someone would need to bring a case. They could be put in indefinite detention.
                  If they managed to start the process, any lawyer who attempted to argue the case could be put in indefinite detention.
                  If a judge decided to hear the case without anyone arguing it, the judge could be put in indefinite detention.

                • We could wake up tomorrow to discover that the entire government had been deposed by a military coup overnight.

                • To be a little less flippant to you, the obvious rejoinder to your point is that, taken literally, it’s really just an argument that the law itself is irrelevant. The state/executive could always physically detain you and hold you indefinitely, and if they were willing to ignore the legal/judicial process and everyone else wants to go along with that reality, what the letter of the legal code says becomes totally irrelevant as a matter of practice.

                • Njorl says:

                  and if they were willing to ignore the legal/judicial process

                  But no one would need to ignore the legal/judicial process in the scenario I am describing.

                  What I am describing seems ridiculous now. The bit about detaining Congress is, of course, absurd. But consider the treatment of lawyers who travelled to Guantanamo to represent the inmates there. Many quit because of threats, and the reactions of those around them. It is not too much of a stretch to imagine a president declaring a lawyer who represents a terrorist suspect to be a terrorist suspect. That would intrinsically eliminate habeas corpus. The right would exist, but no means to enforce it would. I don’t think a president could get away with it today ,but we can’t say what the climate will be down the road.

                  Our government already engages in catch-22s as far as the right to counsel is concerned. Illegal aliens do not have a right to counsel. Citizens who are detained as illegal aliens therefore can be denied counsel because they can’t afford it. If you have no way to exercise a right, it is being taken from you.

                • “But consider the treatment of lawyers who travelled to Guantanamo to represent the inmates there. Many quit because of threats, and the reactions of those around them. It is not too much of a stretch to imagine a president declaring a lawyer who represents a terrorist suspect to be a terrorist suspect. ”

                  Actually that would, in fact, be quite the leap.

        • dave says:

          The president has secret evidence that they are all a part of Al Qaeda. He can’t be compelled to reveal that evidence because it would compromise national security.

          • No, he doesn’t. You are lying in asserting that, and the President would be lying if he asserted that. He would be putting people he knows not to be affiliated with al Qaeda in to detention, which would be a violation of the law.

            Why are there so many people who think that imagining a way to violate a law means that the action in question is authorized by the law?

            • Katya says:

              Because the determination of whether someone is affiliated with terrorists and can be executed without even being indicted, let alone tried and convicted, rests solely with the executive and is not reviewable by a court or Congress. If Obama decides that al-Awlaki is a terrorist, he doesn’t have to show anyone a single shred of evidence to support that claim before he blows the guy (and whatever other random people happen to be nearby) up.

              Just like dropping bombs on a country with which we are not formally at war is left to the sole discretion of the executive, even though dropping bombs on a country is a quintessential act of war.

              • Except, again, this person was killed not by being gunned down as he ate dinner on the streets of Paris or something but by launching an attack against al Qaeda operatives in Yemen. That would be a rather strange place for al Awlaki to have fled to if he were not in fact affiliated with al Qaeda, doncha think?

                • Ben says:

                  Katya is saying that the legal apparatus involved in killing al Awlaki is deficient. You’re saying he was guilty anyway, so it doesn’t matter. I, for one, don’t find that compelling.

                • No I’m not, I’m saying that the extremely narrow set of circumstances surrounding the al-Awlaki situation (consider this for a thought experiment; what if the government had been targeting the people al-Awlaki was with and he’d been killed as collateral damage?) make it a completely pointless situation to draw larger conclusions from. And that the government is not, in fact, claiming the authority to kill any American citizen any time anywhere in the world.

                • Fraser says:

                  And “don’t you think” and “rather strange” are iron-clad legal arguments for proving someone’s guilt. Except Obama didn’t bother to prove anything and still refuses to present any evidence.

                • And “don’t you think” and “rather strange” are iron-clad legal arguments for proving someone’s guilt.

                  You don’t have to prove someone’s guilt for them to be a legitimate military target.

                  You know when the Republicans were claiming that liberals thought we needed to read people their Miranda rights on the battlefield? That wasn’t actually true, you know. People fighting on the other side in a war are not criminal suspects.

                • “Except Obama didn’t bother to prove anything and still refuses to present any evidence.”

                  Well the circumstances of the military strike do at least prove he was, in fact, shacked up in un-governed territory in Yemen at the very least, do they not? Or are we working with some bizarre definition of fact and truth that holds that neither thing exists until they’re adjudicated in an American criminal court?

              • Your complaint about “who decides” still doesn’t demonstrate that it is legal for the President to issue such a bad-faith determination.

                Claiming that there isn’t enough of a process to make sure the executive’s decisions are good ones is not the same thing as claiming that the executive is authorized to do something that he is not authorized to do.

                • Lyanna says:

                  Yes, it is, if the process is nonexistent. There is no practical difference between “You can do X” and “You can’t do X, but you will never be asked to prove that you didn’t do X, and there will never be any review of your actions to determine if you did X.”

                  Maybe you think there is some ineffable difference between the two, but I’m hard pressed to see how it actually matters.

            • Njorl says:

              Making something illegal does not prevent it from being done. There must also be means to ascertain that the crime has been committted, to prove that it has been committed, and to punish the guilty. This law gives the president the power to avoid these other necessary steps which make a law effective.

              • Making something illegal does not prevent it from being done.

                It does, however, make it illegal, which means it is not authorized or allowed.

                The President could break the law before this bill, too. Noting that the President can do illegal things is irrelevant to a claim about what the law allows. In fact, your acknowledgment that such actions would violate the law concedes my point.

                • Njorl says:

                  You are wrong about the meaning of the word allowed.

                  If I tell my child he can’t go outside, and I watch him put on his coat and walk out the door and do nothiing about it, then I allowed him to go outside.

                  This law is ill-constructed. It inherently allows the president to abuse it. A president can abuse this law in such a way that there is no possible legal remedy. It would require extra-legal means to stop a president who was intent on using this law to justify tyranny.

                • Lyanna says:

                  Before this bill, the president was not the sole judge of whether or not he had broken the law.

                  Now, he is. Which renders the law nonexistent.

        • Njorl says:

          Violations of the law are only significant if there is a remedy. If the president has the power to prevent such remedies, then that aspect of the law is moot.

  6. elm says:

    That was an impressively evidence-free post from Glenn. If you were going to use the results of a poll to demonstrate liberal hypocrisy, wouldn’t you want to demonstrate how liberals had changed their views based upon who was President? Maybe I missed it in the verbiage, but I didn’t see a single cite to a Bush-era poll.

  7. Njorl says:

    Something similar happened with the NDAA. Obama’s veto threat was able to ameliorate the worst abuses, but the final bill was still bad, and passed with an overwhelmingly veto-proof majority.

    On rights, Obama is to the left-of-center of the Democratic Party politicians. He may even be to the left of center of people registered as Democrats.

    • david mizner says:

      No, the codification of indefinite detention was the worst part of NDAA, and his veto threat had nothing to do with that.

      • Wow.

        The section of the law that was eliminated mandated the use of indefinite military detention. Had that section been left in place, we wouldn’t be talking about a vague, unused power. We’d be talking about actual people having been put into indefinite military detention.

        What you just wrote is that actually putting people into indefinite military detention is not as bad as having the choice of putting people into military detention and not doing so.’

        Statements like this are why it’s tough to take complaints about Obama’s civil liberties record seriously.

        • It’s just like how Obama was terrible for ever issuing signing statements on bills, irrespective of the substantive content of said statements.

        • matt hates war says:

          Obama refused to sign because he asserted that Congress had no power to regulate his actions in regard to detention, terrorism, or national security. You are either mistaken or lying if you claim Obama’s opposition was to preserve citizen’s rights.

  8. DrDick says:

    I think that some of this also reflects a willingness to deny rights to the “other” (however defined). Arabs/Muslims have been systematically demonized and othered and are thus seen as undeserving of rights. The same is true in some segments of our society for African Americans, Hispanics, LGBT, and women.

    • That seems to be the base problem here, to me. The lesson is that people are still by and large perfectly okay with denying rights to people they don’t like or to behavior they don’t approve of.

      • BradP says:

        You know, I see report after report of police either beating someone, torturing them while they are in custody, or breaking down doors and shooting unarmed people in their homes, and it never seems to matter what race the person is. The outrage never seems to match the crime.

        • DrDick says:

          You really need to read the Justice Department reports then. There is a whole lot of data on the fact that minorities are more likely to suffer from police abuse (and I study this stuff). That said, criminal suspects also fall into that marginalized other category.

          • I’m also going to wager that abuses by local law enforcement produce much more localized outrage. I know that when a local teenager got shot by a Swat Team for coming down the stairs with a plastic cup there was a BIG uproar in the local community (although there was certainly a lot of “that’s what they get for drinking beer and smoking pot” sentiment at the margins as well), but I doubt it got much play in, say, greater St. Louis.

            • DrDick says:

              A lot depends on the context, but there is far less outrage if the victim is a minority or, often, from a lower class family.
              Here is the actual data on minorities and police abuse.

          • BradP says:

            There is a whole lot of data on the fact that minorities are more likely to suffer from police abuse (and I study this stuff).

            Of course this is true, but there are plenty of examples of being beaten for driving while diabetic as well.

            At least enough that you would think it would be enough to cause people to be wary of giving police greater power.

            • DrDick says:

              Did you even take a look at the link I gave you? It is a very long list of scholarly articles from Google Scholar on the topic, as opposed to anecdotal speculation. I realize that libertarianism is a fact free zone, but do at least try.

              • BradP says:

                I agreed with you, dick.

                I was just pointing out that there have been plenty of videos and stories of whites getting beaten and killed as well.

                • DrDick says:

                  That is because there is more attention paid to the issue when it happens to white people. The actual incidence, however, is far lower, which is my point.

  9. BradP says:

    Like Glenn, I’m dismayed by polling showing widespread support — including among Democrats and liberals — for arbitrary executive power in the “war on terror.” But I take somewhat different lessons from it. Glenn sees this as above all as evidence of tribalism — that liberals only oppose violations of civil liberties when a Republican is in the White House. While I’m sure that partisan considerations affect popular support for these actions at the margin, I think the primary issue is somewhat different and much more disturbing: namely, that civil liberties don’t just have a strong political constituency no matter who’s in the White House.

    It seems like you two are saying the same thing, civil liberties aren’t really that important to the public, so outrage over them tends to sway in tribalistic directions.

    I would say that is because the argument for civil liberties is pretty, but just not that substantial to most people. Therefore, when one side defends civil liberties, its appealling to the listener’s constitution, but at the same time, when a group advocates some stripping of civil liberties, people don’t see it as overly important.

    Its all just gonna go down the shitter.

    • Malaclypse says:

      Its all just gonna go down the shitter.

      For once we agree.

      • BradP says:

        Its particularly discouraging that, when someone comes out with the “Pox on both houses” argument concerning civil liberties, the response is “Nuh-uh, democrats always sucked.”

        • elm says:

          This is a fantastic misreading of Scott and most of the commenters (me included, I think.) Scott isn’t disagreeing with Glenn’s “pox on both our houses,” he’s disagreeing with Glenn’s ‘logic’ as to why the pox is deserved. It matters whether Dems are soft on civil liberties because they are tribal hypocrites or because they don’t really give a damn about civil liberties.

          Personally, I think it’s a little from column A, a little from column B. My main issue is that Glenn provided no evidence for his assertion in his post (and david, here, has largely continued this with claims that he’s just using “common sense” or that people who disagree with him are “funny.”)

          • BradP says:

            This is a fantastic misreading of Scott and most of the commenters (me included, I think.)

            The general gist of this argument seems to have been this:

            1) Glenn Greenwald charges that a chunk of liberals and democrats are hypocritical because they do not express the same outrage towards some of Obama’s policies as they did to similar Bush policies.

            2) Scott disagrees by arguing, in effect, that civil liberties never really were that important.

            No regular commenter here is more likely to throw out a “pox on both houses” argument. In every single case up until this one, I was told in no uncertain terms, that liberals and democrats are better than I am making them out to be.

            On this one, no matter who’s take you subscribe to, the error would be in overestimating the strength of the liberal position.

  10. Incontinentia Buttocks says:

    A few thoughts:

    1) I’m not sure what the Gitmo example proves vis a vis tribalism. Why should the measure of “tribal” behavior be voters’ comporting their views to those of the President rather than to those of their party’s Senators?

    2) While I agree that the deepest problem here is the lack of a constituency for civil liberties, one of the reasons we lack such a constitutuency is that “serious” people–Democratic and Repubilcan–in Washington do everything they can to avoid fostering one.

    3) I guess I partially agree with Glenn. I think he sees most progressives as basically committed to civil liberties, but hypocritical insofar as they are willing to put those commitments aside when Democrats are in power. I tend to think that the real problem is that many progressives aren’t committed to civil liberties but are willing to hypocritically attack Republicans for violating them when the GOP is in power. In this regard they’re very like conservatives on budget-balancing.

    • “1) I’m not sure what the Gitmo example proves vis a vis tribalism. Why should the measure of “tribal” behavior be voters’ comporting their views to those of the President rather than to those of their party’s Senators? ”

      Because we all know Greenwald doesn’t think that, because we have memories that extend farther than that of a gnat’s.

      • Incontinentia Buttocks says:

        I’m not talking about how we characterize Glenn’s point of view (about which you’re entirely correct of course: it’s about the President), but rather whether we want to reject entirely the notion of tribalism.

        • david mizner says:

          It’s funny that people are actually contesting the notion that a lot of Dems are willing to excuse shit from a Democratic President. Although to be sure, most are willing to excuse shit in the civil liberty-national security realm more readily than they are shit in the economic, environmental. health care realm.

          Unlike Greenwald, I never believed that all the people raising a stink over Bush’s seizure of executive power actually cared that much about those issues. They were playing politics. So now that I think about it, I’m leaning more toward Scott’s interpretation.

          Whatever the cause — and this threatens to send us back into the Ron Paul vortex — it’s a little, um, appalling that more liberals aren’t up in arms over the United States killing innocent brown people. But then, have most American liberals ever minded killing brown people?

          • “It’s funny that people are actually contesting the notion that a lot of Dems are willing to excuse shit from a Democratic President. Although to be sure, most are willing to excuse shit in the civil liberty-national security realm more readily than they are shit in the economic, environmental. health care realm.”

            So now you’re going to just go back to pretending that Obama didn’t in fact try to close Gitmo? Of course you are.

          • “Whatever the cause — and this threatens to send us back into the Ron Paul vortex — it’s a little, um, appalling that more liberals aren’t up in arms over the United States killing innocent brown people.”

            Also, you’re back to treating civil liberties issues with conduct of war issues interchangeably. Wheeeeeeeee!

            • Incontinentia Buttocks says:

              War issues are not logically the same thing as civil liberties issues but they in practice closely linked and have been throughout U.S. history. To deny the connection is akin to denying the historical relationship between states rights arguments and racial oppression.

              America’s wars have been occasions for the narrowing of civil liberties and the creation of a virtually permanent imagined state of war makes the wartime exception the rule (as I think Mary Dudziak argues in her new book War Time). Or as Randolph Bourne put it almost a century ago: War is the health of the state.

              • Asteele says:

                War issues are definitely human-rights issues, and for obvious reasons these and civil-rights have been inexorably linked.

              • Well, okay, but that doesn’t change the fact that an issue of bombing targets in other countries is not part and parcel of domestic civil liberties protections.

              • david mizner says:

                Yeah, this isn’t complex. The government is taking our rights in the name of fighting “terrorism.” And it’s killing brown people in the name of fighting “terrorism.” There are civil liberties issue unrelated to war and peace, and there are war and peace issues unrelated to civil liberties issues, but drone warfare and indefinite detention are part of the same government effort.

            • Stag Party Palin says:

              Your initials aren’t just a coincidence, are they?

  11. djw says:

    The shift in public opinion on guantanamo seems like a pretty strange way to make the case for ‘tribalism’, since it was the alleged leader of the tribe who was trying to close it. (Unless you take a Jeer9-esque view that the attempt was nothing more than a head-fake for liberals, and Obama always gets exactly what he really wants).

    It seems to me a to be evidence of a corrolary to Scott’s central point. In addition to broad public support for civil liberties being depressingly low, it’s also quite shaky where it does exist. In other words, even when Americans do take a civil liberties position, it’s shaky and vulnerable to demagoguery.

    • jeer9 says:

      OT, but please read Yves Smith’s take on the mortgage fraud settlement over at Naked Capitalism if you have any doubts about this administration always getting what it wants. The collateral damage caused by drone strikes is indeed disturbing but it is unfortunately of a piece and at a much lower level of magnitude with what is occurring on the domestic financial front. We really are manufacturing a two-tiered justice system (as GG has forewarned) which does not bode well for our future (even if OWS holds firm to their non-violent stance). Should be an interesting summer.

  12. Hal says:

    Agreed with the others that it would help to have an actual straight up comparison of polls. Hard to say its hypocrisy otherwise, especially “repulsive.” Greenwald’s basically saying “Adam Serwer and digby bashed Bush for x in 2006 and now this poll shows that a majority of Democrats approve of x under Obama.” Great.

    Can’t disagree that there’s intense tribalism around all issues like this, but caring about civil liberties is not something many people do.

  13. Davis X. Machina says:

    Even among the supporters, e.g. of closing Guantánamo you’d get a spread of motives with differing degrees of civil-liberties content — ‘detention there makes us look bad and hypocritical overseas’, ‘it’s counter-productive in the fight against terrorism’, as well as it ‘is an evil per se‘.

    Not a comforting prospect, but that last group may not even be a plurality of a plutality.

    • rea says:

      Well, but nobody really thinks so-called indefinite detention is per se evil.

      Was it per se evil to detain members of the Wehrmacht during WW II “indefinitely” (for the duration of the war, however long that took)?

      No, the problems with our handling of these prisoners are (1) not according them the rights of prisoners of war after using their POW status as the legal justification for indefinite detention, (2) defining the “war” in such a way that it can never end, and (3) torture and abuse of prisoners (which is per se evil).

      • Davis X. Machina says:

        Depends on your reading of my ‘it’…

      • djw says:

        “indefinitely” (for the duration of the war, however long that took)

        Ah, but that those two things are now indistinguishable in the context of wars against non-state entities is, to my mind, one of the many problematic issues with the “war against X (where X is not a state)” approach to combating global terrorism–it renders an important jus in bello limitation essentially meaningless in a way that it did not used to be.

        • rea says:

          Which, of course, is why I said essentially that in the very next sentence: “defining the “war” in such a way that it can never end”

          And of course, in, say 1943, imprisonment for the duration of the war was necessarily “indefinite”

      • fasteddie9318 says:

        Was it per se evil to detain members of the Wehrmacht during WW II “indefinitely” (for the duration of the war, however long that took)?

        No, but then everybody had a pretty good sense of what form or forms the “duration of [that] war” might take. Declare a war with no clearly understandable end-point, and “duration of the war” becomes a much bigger problem.

  14. Robert Farley says:

    I guess I’m not convinced that “criticize the other guy for something you would have done anyway, but more quietly” is appropriately categorized under “tribalism” rather than “strategic employment of political rhetoric.” And in any case I’ve long felt that hypocrisy is among the most trivial of political sins…

  15. Maybe it’s just my tribalism speaking, but if I came across data indicating that a large segment of liberals supported a position I opposed, my immediate reaction wouldn’t be to insult them for their obvious hypocrisy and low moral character.

    My reaction would be to wonder if maybe they had a point, if maybe there wasn’t some principle or issue of fact that makes their position, if not better than mine, then at least defensible according to the precepts of liberalism. No doubt, someone is going to respond to this with “What if a majority of liberals said they supported cannibalism,” but of course, a majority of liberals would never do that. A majority of liberals are only going to come together in favor of a position that is at least arguably in line with liberal beliefs.

    Maybe that’s just tribalism speaking, too. Or maybe it’s an appropriate level of humility about one’s own infallibility, and a liberal willingness to hear the other guy out, especially when he shares the same broad set of core beliefs as me.

    • rea says:

      If a majority of liberals said they supported cannibalism, well, they’d be wrong.

      You only promised them “to wonder if maybe they had a point,” not to agree with them.

      • brautigan says:

        No doubt, someone is going to respond to this with “What if a majority of liberals said they supported cannibalism,” but of course, a majority of liberals would never do that.

        Ten years ago, I was just as certain that a majority of Americans would not support torture and indefinite detention.

    • Reilly says:

      Maybe it’s just my tribalism speaking, but if I came across data indicating that a large segment of liberals supported a position I opposed, my immediate reaction wouldn’t be to insult them for their obvious hypocrisy and low moral character.

      Greenwald isn’t so much a gadfly (as Campos, gentleman that he is, floated a while back) as he is a public political scold who establishes his superiority by pointing his finger and yelling “Hypocrite!” It’s easier than analysis and satisfies his ardent following. (And whenever I read Greenwald lecturing to those followers about tribalism I agonize that the English language is bereft of words to indicate degrees of irony. Until I get to his lectures outlining the hazards of leader-glorification, at which point the catharsis of laughter brings me back to equilibrium.)
      But to your point: If somebody were actually interested in affecting political change they would necessarily want to get to the bottom of why the electorate behaves in certain ways rather than simply insulting them. If almost everyone is stupid, immoral, hypocritical, authoritarian and tribal then why bother except for self-aggrandizement?
      You mentioned earlier Greenwald’s weasel words “It’s hard to imagine that…” and his lack of diligence in breaking down the polling data. I also noted these two things (and many others) about Greenwald’s methods in a deconstruction of his Hitchens post from December. A. Jay Adler hosted it with a brief introduction on his blog The Sad Red Earth if you’re interested.

  16. Lee says:

    Are there really any democratic countries with a strong constiuency for civil liberties? From my reading of international politics it seems that in nearly every democratic country, civil liberties isn’t of primary political importance to most people. Economics, the environment, transportation, healthcare, housing, and a variety of everyday concerns seems to be what is most important to people right and left. Civil liberties is the concern of a small group in most democractic countries.

    • actor212 says:

      Are there really any democratic countries with a strong constiuency for civil liberties?

      I think the words “democratic country” already indicate strong constituency for civil liberties, don’t you?

      There’s a baseline. Once you get past that baseline, that’s where the gray areas start. For example, I don’t think anyone, liberal or conservative, would want to see a law-abiding (definition to be determined) American in Gitmo without due process. It becomes a gray area once you adjust any of those parameters, however.

      • Murc says:

        I don’t think anyone, liberal or conservative, would want to see a law-abiding (definition to be determined) American in Gitmo without due process.

        I will bet you all the money in my pockets against all the money in your pockets that if the Executive Branch announced it was throwing an American in Gitmo with no trial on the basis of him being a terrorist but they not being able to prove it open court, a non-trivial chunk of the country, including many in the commentariat, would stand up and cheer.

      • Lee says:

        What I meant is that civil libertarians are going to be a minority political constiuency in most if not all democracies. Most individuals and groups are going to be more concerned with economic, environmental, and social issues or if you put it another way, material issues over civil liberties issues. Material politics effect individuals and groups more directly than civil liberties issues. When an indivdual or group is moved by a civil liberities issue its usually limited to how it effects themeselves or their group. General civil libertarians are rare.

        I suppose that if we want civil liberties to be a major concern for individuals and voters than we need to find a way to make them material to people.

  17. owlbear1 says:

    I’d imagine being an alien that just landed last week, it’s difficult for Glenn to fully understand the context of what is happening in U.S..
    For 40+ plus years we’ve all gotten to see and hear one political party extol the virtues of mindless avarice and glorification of racism and systemic subjugation of women.
    We’ve watched as one political party encouraged fraud, abuse, and destruction of natural habitats for a extra nickel’s profit.
    So, it is certainly reasonable that Greenwald, being completely ignorant of recent U.S. history, can conclude it’s just tribalism.

  18. Jim Lynch says:

    Your points are well taken, but I’d substitute ‘political parties’ where you invoked ‘a president’.

  19. You know what would solve all of our civil liberties problems-a Ron Paul Presidency!

  20. rea says:

    The fallacy here is that Scott says, “I’m dismayed by polling showing widespread support — including among Democrats and liberals — for arbitrary executive power in the ‘war on terror’”, and then links to a poll about drone strikes on US citizens in foriegn countries, the most notable example of which is the al-Alwaki killing.

    And there are Democrats and liberals like me (and I suspect, Joe, although of course I don’t speak for him) who are utterly opposed to arbitrary executive power in the war on terror or otherwise, but who don’t think the al-Alwaki killing is an example of that–he was an enemy leader on a battlefield, and therefore a legitimate target.

    So, the poll doesn’t measure what you say it’s measuring. It doesn’t measure general support for arbitrary executive power–it measures agreement with your views of the al-Alwaki killing. Conflation of the general with the particular in this way is not fair argument.

    If I say I think Cameron Todd Willingham was innocent, would you think it fair argument to accuse me of supporting child murder? The argument in this post is of the same order.

  21. milesthedog says:

    I too am skeptical of the general trends that can draw from polls. Does ‘the public’ make a distinction between indefinite detention as a principle and locking up those guys responsible for, or told are responsible, for 9/11.

    Also I find a lack of concern for civil liberties parallels a general apathy toward politics in general-an apathy that carries over to a general lack of knowledge. I wonder what the polls would show if people were informed of the specific and general aspects of these issues.

  22. [...] we attack Iran, they might fight back! •Even without the war on terror, there might not be much support for civil liberties. •A Staples executive explains that giving female employees room to [...]

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