Privacy SOS

The Democratic party platform and civil liberties

The Democratic Party platform for 2012 is out. Like I did with the GOP platform last week, I've pulled out some sections on civil liberties and privacy and contrasted them with the actions of the Obama administration over his first term. This is by no means an exhaustive, deep-dive into the platform, but it's nonetheless illuminating. In the DNC case, I found most interesting what was missing entirely from the document.

The Constitution

Absent from the Democratic party platform entirely is any explicit mention of the First, Fourth, Fifth or Sixth Amendments, those that guarantee free speech and religion; freedom from unwarranted government intrusion into our private lives; the right to due process; and the rights to challenge evidence and one's accusers, respectively. 

The Second Amendment, on the other hand, gets an entire paragraph:

Firearms. We recognize that the individual right to bear arms is an important part of the American tradition, and we will preserve Americans’ Second Amendment right to own and use firearms. We believe that the right to own firearms is subject to reasonable regulation. We understand the terrible consequences of gun violence; it serves as a reminder that life is fragile, and our time here is limited and precious. We believe in an honest, open national conversation about firearms. We can focus on effective enforcement of existing laws, especially strengthening our background check system, and we can work together to enact commonsense improvements – like reinstating the assault weapons ban and closing the gun show loophole – so that guns do not fall into the hands of those irresponsible, law-breaking few.
Constitutional values
In a section towards the end of the document called "Advancing Universal Values," the Democratic party platform reads:
Staying True to Our Values at Home...Advancing our interests may involve new actions and policies to confront threats like terrorism, but the President and the Democratic Party believe these practices must always be in line with our Constitution, preserve our people’s privacy and civil liberties, and withstand the checks and balances that have served us so well. That is why the President banned torture without exception in his first week in office. That is why we are reforming military commissions to bring them in line with the rule of law. That is why we are substantially reducing the population at Guantánamo Bay without adding to it. And we remain committed to working with all branches of government to close the prison altogether because it is inconsistent with our national security interests and our values. 
There's a lot going on in that statement, so let's dissect it bit by bit.
 
While the President and the Democratic Party may "believe" that "new actions and policies to confront threats like terrorism…must always be in line with our Constitution, preserve our people's privacy and civil liberties, and withstand the checks and balances that have served us so well," the President's policies suggest he is often not motivated to act on those beliefs.
 
President Obama's first term provides countless examples of policies and legal arguments that don't comport with the Constitution, our privacy or our system of checks and balances, but the following extremely significant examples suffice to illustrate the gap between the fine statement above and his actions. These are only the most egregious examples among a host of many more.
 
On actions "in line with our Constitution": The Obama administration oversees the NSA, which is building a massive data center that whistleblowers say will store all available digital communications — anything the agency can get its hands on. President Obama signed the National Defense Authorization Act of 2012, which granted the government the authority to indefinitely detain US citizens without charge or trial. And his administration asserted the legal authority to kill US citizens absent due process — and then used the claimed authority and a lethal drone to kill US citizen Anwar al-Awlaki (as well as his 16 year old US citizen son, Abdulrahman, weeks later).
 
On actions which "preserve our people's privacy and civil liberties": The Obama administration's Department of Justice has further degraded the standards for domestic investigations, allowing the FBI an even freer hand to investigate anyone — absent any reasonable suspicion or evidence of wrongdoing. The Holder DOJ has argued that police and federal law enforcement don't need a warrant to track us in real time via our cell phones. And Obama's Department of Homeland Security has continued the Bush administration tradition of funding massive surveillance and biometrics schemes at the federal, state and local level — even though most US residents don't know it is happening.
 
And finally, on the question of the President's respect for "the checks and balances which have served us so well," we can only turn to the Obama administration's redefinition of "due process" — a redefinition deployed to defend the supposed constitutionality of its extrajudicial assassination campaign targeting US citizens outside of war zones. The administration is not violating the Fifth Amendment right to due process of law because due process does not mean judicial process, the administration said. There are checks and balances, the argument goes, but they are all within the executive branch. 
 
The administration appears not to want to draw attention to its deployment of the authoritarian power to kill citizens absent due process, however: The words "drone" and "Awlaki" (or "Aulaqi") do not appear in the Democratic party platform for 2012.
 
To buttress the party's claims about the administration's commitment to "our values," the document lists a number of acts that it considers civil liberties achievements:
That is why the President banned torture without exception in his first week in office. That is why we are reforming military commissions to bring them in line with the rule of law. That is why we are substantially reducing the population at Guantánamo Bay without adding to it. And we remain committed to working with all branches of government to close the prison altogether because it is inconsistent with our national security interests and our values.

The President did officially ban torture during his first week in office, but just last week announced that the DOJ would not file charges against any of the CIA officers or Bush administration officials involved in the torture and killing of detainees. And while Obama has reformed military commissions to make them slightly better, they remain a travesty and a mockery of justice.

The claim about GITMO releases is also partially true, although the administration has yet to charge or release at least 82 prisoners who to this day languish in detention in the US military prison. And as to the claim that his administration is "not adding" to the prison population at GITMO, its other actions suggest that its counterterrorism plans replace detention with "kill lists" and extrajudicial assassinations — not exactly a civil liberties achievement.

The role of the executive in the US system
Perhaps these serious civil liberties mistakes stem from the President's fundamental misunderstanding of the role of the executive in the United States Constitutional system of government. The Democratic platform reads: 
 
"President Obama and the Democratic Party know that there is no greater responsibility than protecting the American people."
 
But when President Obama took office, he made an oath to defend and protect the Constitution. He, like all US Presidents before him, said what the Constitution itself requires of all soon-to-be executives:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

© 2020 ACLU of Massachusetts.