March 19, 2008

Well OK Then

Barack Obama yesterday gave the bravest, most honest, most comprehensive and accurate explication of contemporary racial politics I have heard any politician give in my lifetime.

First, let's acknowledge that it's a little absurd and disappointing that the candidate felt a need to speak at all. I understand the desire to publicly distance himself from Jeremiah Wright, but it's disgraceful that such a need is pressed upon him but not upon John McCain, whose affiliations with not one but two overtly bigoted religious figures — one of whom, televangelist Rod Parsley, he has called his "spiritual guide" — could peel paint off the walls in any house of decency. Nevermind that, impolitic tone aside, nothing Wright said was actually, well, wrong. Can it really be news that, comparatively speaking, the black experience in America is an embittering one?

Nevertheless, Obama managed to fashion a rejoinder to Wright and to Wright's critics at once. And it was a capacious one, making room for the richness of American perspective on racial politics. Obama hasn't so much seen something new as he's managed to articulate the state of race relations, and race politics, in America at this moment in a way that gives credence to every point of view, and even every emotion, without the caricature or condescension so endemic to our public discourse. He has been candid without being spiteful, optimistic without being blithe. He treated this most mistreated subject with clarity and with dignity.

And in doing so, he's laid down a gauntlet — not this time for his Democratic competitor or even for McCain, but for citizens. For voters. It is the gauntlet of maturity. There is no guarantee the gauntlet will be retrieved; any honest American must, with sadness, concede this. But there it lies, where it did not the day before. And I don't mind saying that I became an Obama fan today. He transcended the politics I have known for my entire life with this speech; he spoke to me as an adult, as a student of history, and as a person of conscience. That's what I'm after in leadership. It is, in the end, a simple thing.

I hope we'll take up this implicit challenge. I hope Obama will be the Democratic nominee, and I hope I'll have the chance, along with millions of others, to vote for him come next November. I hope the level of rhetoric in the campaign will be raised from here on out, and I even dare to hope that McCain will be called to give a similar accounting for his religious compatriots (and I'd dearly love to hear it if he does).*

* And then I'd like to see Jon Stewart, whose pervasive affection for McCain remains mysterious to me, try to spin it as a character asset, or failing that as plain old comedy gold.

March 08, 2008


Yes, Samantha Power made headlines today by resigning from her position as an adviser to the Obama campaign in the wake of an interview in which she called Hillary Clinton a "monster." And that's all a little shocking and a little silly and a little schoolgirl-crush-ish of her. But real, substantive campaign news of the day came from another Obama advisor, John Brennan, who gave an interview of his own in which he claimed "I do believe strongly that they [telecoms who broke the law by turning call data from their subscribers over to the federal government in the absence of a warrant] should be granted ... immunity, because they were told to do so by the appropriate authorities."

Brennan is arguing against his own candidate in this instance; Obama's official public position has been to oppose immunity. It's one of the reasons he won the endorsement of former candidate Chris Dodd, for whom this was a definitive issue.

A quick glance at the comments on that Think Progress page, BTW, will prove disheartening for anyone who's harbored visions of Democratic unity. And you will note, as I've discussed here earlier, that there's little purity or above-the-fray tone on the part of the Obama camp. In fact, it gets downright vituperative, with not a few stabs at Think Progress for even running the piece. Post-partisan indeed.

A word to Brennan: actually, the "appropriate authority" in this case would have been a warrant. Any other "authority" is decidedly inappropriate, a violation of the Fourth Amendment as well as the FISA statute itself.

A word to those Obama supporters, on TP and elsewhere, who defended Brennan with the claim that he demonstrates Obama's openness to surrounding himself with different views: that's an interesting point, and it would be a fair one to make if Brennan's comment had been made privately, in a staff meeting or behind closed doors with the candidate and/or other advisors. But this was a public comment, and what's more it was an argument — an attempt to sway opinion. When you have a position on a subject, as a candidate or as an officeholder, it's self-defeating to have members of your own administration making public arguments against you. That tends to make it impossible for people to know what your administration stands for, and thus what policy you're after — never mind that legislation is hard enough to negotiate even when everyone on your team is pulling in the same direction. There's already another team out there, after all. Debate in the officer's mess can be free and vigorous, but once you're beyond that space the public position must be coherent and consistent. Otherwise, people see either deception or weakness, and neither is good.

If Obama really is opposed to immunity, he needs to let this guy go — if not because he publicly broke ranks, then because he's a legal idiot. "Appropriate authorities" isn't even close.

March 07, 2008

Obama's Fork

I don't generally read David Brooks because I don't generally find his bland, sophomoric, self-serving and self-satisfied version of upper-middle-class conservatism revelatory. But today's column on the shift in the Democratic primary campaign is, if not revelatory, at least as concise a description of Obama's dilemma as I've yet seen.

It's a prisoner's dilemma, that: if the lesson of Clinton's comeback on Tuesday was that negative campaigning gets results (and this is the lesson the chattering classes will want us to take, since it's the lesson that will prove most lucrative for them), then Obama will be hard pressed not to go negative. But going negative stands to hurt him as much as help, given the themes of his campaign — post-partisanism; unity; new politics; raising the tone. And it may not do much damage to Clinton, given that, as Brooks points out, her campaign rests not on promises of spiritual redemption but on the promise of a winning record on the bareknuckle fight card of legislative politics. She has suggested that changing the country's direction is about being better in the trenches than the other guys; he has suggested that changing the country's direction means getting out of the trenches altogether, because it's hard to tell the difference in the end between a trench and a gutter, especially when the results tend to stink. If he hunkers down and starts to fight, then he has, in a sense, as Brooks notes, already lost.

A couple of things. First, I confess I've been a Clinton supporter thus far, but a tepid one. I did vote for her in New York's primary; but I also stood a long time in that booth, and I pulled and unpulled the levers several times before locking them in. My allegiance has been based not on a dislike of Obama or even, really, on a concern over whether he has the gravitas for the office. He does. My choice was based on rather specific policy distinctions and on what I see as a modest difference in potential efficacy. Clinton's health care plan, for instance, is in my judgment more realistic -- or, rather, Obama's is economically unsound to the point of long-term nonviability. I also think the presidency is finally about setting and pursuing a legislative agenda, and I think Clinton's record in the senate gives her the edge in this regard. The bully pulpit is useful, but arm-twisting and cajolery are more useful, and Clinton has shown herself capable of both. That's not to say Obama isn't, just that she's done it well and she's done it more.

That said, another part of my position has been defined by an inability — or perhaps refusal — to endorse certain aspects of the style and content of Obama's campaign. It has a tendency toward elision, for one thing — toward vagueness, sometimes meaninglessness. I believe this has been a strategic choice on the campaign's part, and while I understand it as strategy and understand that it's been a big part of their success, I can't endorse it. I don't think it's particularly good for the democratic process. Similarly, "post-partisanship" as a platform strikes me as intellectually disingenuous, if not dishonest. Governance is about policy; policy is about the ways in which public business gets done. Opinions on which ways are the right ways differ; that's partisanship. Is Obama saying he has no opinions, or that his opponents have none? It's fantasy. There are genuine disagreements in the US about how to conduct foreign policy, adjust the healthcare system, structure taxes, educate children, oversee the marketplace, address social security. Reconciliation is not, and will not be, easy. There will be winners and losers. Abortion is legal or it's not; social security is privatized or it isn't. Obama's campaign has suggested the opposite: that, by some form of rhetorical magic, disagreement will vanish, consensus take its place. He has seemed to promise that he will at once be a progressive champion and take conservative viewpoints into account. That's not possible, of course; either conservatives have to give in or progressives do, because the solutions they want are not compatible. I am of the opinion that it's better to be honest about this, to talk openly about what the goals are and where points of compromise might be found. Democratic process should be conducted with open eyes as well as open minds; delusion is an enemy.

I also think it's worth noting that while the candidate himself, and the campaign as an entity, have shunned ordinary forms of internecine bitterness, Obama's supporters have done nothing of the kind. From op-ed pages to blogs to forums, Obama fans have been anything but post-partisan. Their attacks on Clinton are downright vitriolic, in fact, and they are by no means recent. It was from putative Obama progressives that I first heard threats to abstain from voting or to vote Republican in the general if Obama was not the nominee. Michelle Obama herself was one such threatener — the first major public figure, in fact, to suggest placing the candidate above the party, and presumably therefore above policy goals. What's more — and more telling — the attacks on Clinton have rarely been policy-based. They don't cite misguided proposals; they cite an intense and often inexplicable dislike of Clinton personally, or of her public style, or of her husband. It's the most discouraging kind of, yes, partisanship, because it suggests no commitment to policy at all, only to a rhetorical style or the man who employs it — a cult of personality on the one hand (love of Obama), or a cult of anti-personality on the other (hatred of Clinton). It also tends to endorse the Republican attacks of the 1990s by blaming Hillary for Whitewatergate (a seven-year, $40 million investigation that led nowhere), the health care debacle (for which Clinton surely bears some responsibility, but for which the health insurance lobby bears more, in that it spent billions to mount a vicious attack that was the true obstacle to reform), and even the Monica Lewinsky affair.

Which is to say, more generally, that it — the Obamaniacs' brand of partisanship — endorses exactly the personal-attack politics deployed by Republicans since 1987 (Willie Horton; the evisceration of Dukakis), elevating embrace or rejection of a candidate's persona over policy positions or legislative goals.

It's important to note, though, that while I think the Obama campaign has been aware of this and happy to benefit from it, they have not inhabited it themselves. Witness today's resignation by Samantha Power, a public intellectual I much admire who recently, and quite bizarrely, referred to Clinton as "a monster." I tend to think we see here both faces of the Obama phenomenon: on the one hand, a fanatical devotion to the candidate that causes supporters to lose all rationality, to take the buffeting of the campaign process deeply personally, and to lash out with the vituperation of lovers on his behalf; and, at the same time, the campaign's own rigorous dedication to its declared standards of conduct and public regard.

Brooks may well be right; all that may change. But then again it may not. It's possible Obama can hold onto the high ground and still win; his delegate advantage, after all, was virtually unchanged after Tuesday. If he sticks to his guns, deploys strategic media, and mobilizes his tremendous ground operation, he might consolidate that lead. Even losses in upcoming primaries, including Pennsylvania, won't affect it much so long as they're not massive losses. His best move now might in fact be to ignore Clinton — ignore the calling out, the mud, the sarcastic attacks. He could turn his attention instead to two things: first, reminding the country of its displeasure with the status quo — with Bush and the Republicans, and by extension with McCain, who has embraced our current course wholeheartedly in the past few months. Second, he could go on a policy offensive, drilling down on economics, health care, justice and judicial policy, education and infrastructure, fleshing out his progressive aura with policy detail. This might accomplish two things: it might siphon Clinton supporters like myself who have been frustrated by his willful vagueness; and it might let him connect with working-class voters in Pennsylvania and elsewhere who are looking for economic cred. And it would keep, perhaps even strengthen, those members of his base who have been attracted to the promise of a different kind of political discourse. The all-deciding superdelegates might find this hard to resist.

I still harbor tepid feelings for Clinton, but I don't much like her campaign. I don't like attacks that stir fear, or that sound as though Karl Rove wrote them. I like even less the notion that we might populate government offices based on highly mediated perceptions of personality rather than on policy positions and legislative goals. And I think a strong case can be made that Obama — if he remains Obama — would run stronger against McCain in the general. The politics of fear are nearly played out, I think, especially if voters can be reminded of what they've brought us.

So it seems that, in more ways than one, the ball is now in Obama's court.

March 06, 2008


Listening to a discussion on NPR's "Talk of the Nation" program on Monday about the childishly named "Protect America Act," I am reminded of the contempt in which the current US government holds its citizens. The subject is the law, currently under consideration in both the house and the senate, which would provide immunity from prosecution for those telecommunications companies that provided information to the goverment, at the government's request, on their patrons' phone patterns. The information provided was putatively employed in the pursuit of suspected terrorists, though there's nothing beyond the goverment's word to verify this (and in fact there are reports from some former telecom workers to contradict it, but that's another story). No terrorists have been brought to trial as a result of these machinations, and in fact no arrests have been made, as far as the public record is concerned. The president has alluded to foiled plots, but let's just say his credibility on such issues is not iron-clad; a president can allude to more or less anything he wants without fear of consequences. He can refer, for example, to impending mushroom clouds or to purchases of uranium in African black markets. He can refer to the immanent deaths of insurgencies in certain middle-eastern countries. None of this makes such things so. Best, in light of the history, to ask for something other than the president's say-so on matters of terrorism and security.

The program's guest, a justice department flunkie named Kenneth Wainstein (his official title is Assistant Attorney General for National Security, but in the Bush administration that's like saying Deputy General of Whatever I Want), defends the act on the grounds that immunity is warranted because justice department officials (which ones? He doesn't say) met with the telecoms and assured them everything was legal.

At least four questions come immediately to mind. First, the telecoms all have big, highly regarded, well-staffed and well-paid law firms to decide what's legal for them to do and what's not. They consult these firms daily, if not hourly, on exactly such matters. Nor are such firms accustomed to taking justice department opinions prima fascia in any other regulatory matter — in fact, they're quite accustomed to fighting justice department opinion about their clients' behavior. So the question really isn't, and shouldn't have been, what the justice dept said about the legality of the actions, but what the telecoms' own duly retained counsel said. That's what counsel is there for, after all.

Second, since when has the advice of counsel of any kind been an excuse for breaking the law? Imagine the murder trial in which that logic were to come into play and you'll see what I mean. Legal counsel is not a deflection of guilt. This is what trials are for. If the justice department believes their advice was legally sound, let juries hear the cases, evaluate the evidence, and render a verdict.

Third, not all telecoms complied. Quest, for one, famously refused. At the least this indicates divided opinions on what the telecoms' options were at the time — that legal opinions could vary, that is, regardless of what the justice department said. When asked about this by a caller to the radio program, Wainstein says he prefers "not to get into who thought what" about what was legal and what wasn't — and then he launches into a lengthy disquisition on how the telecoms (other than Quest, that is) thought what they were doing was completely legit because the JD told them so. In other words, he has nothing to talk about but what people thought at the time about legality. He just doesn't want to talk about Quest.

Fourth, there's an easy way around all of this, and it's called the warrant. Had the administration, or the Justice Department, or whomever really wanted to gather information, all they needed to do was get a warrant. This means nothing more than providing a FISA judge with the evidence that has led Justice to suspect the individual they want to spy on (that is, probable cause — whatever aroused their interest in the first place). The FISA court is notoriously willing to issue warrants; they've turned down less than 1% of such requests in the 30 years of the court's existence. Any prosecutor or DA — not to mention gamblers — would be happy with those odds.

Warrants, once issued, are obligatory; compliance on the part of the telecoms would not have been an option, and thus would not have exposed them to liability. Even pesky Quest would have been forced to comply. And if justice department officials had time to brief the telecoms' counsel, surely they had time to prepare a warrant petition.

The fault for the telecoms' current predicament thus lies not with Congress but with the administration and with Justice, who created the dilemma by refusing to follow due process and get surveillance warrants; and with the telecoms' own executive and legal departments, who have no excuse for not knowing that justice department assurances are not legally binding in any court in this land (if they were, it wouldn't take an act of Congress to exculpate the telecoms now).

(As a side note, it's worth remarking the irony in the same men who make a habit of shrilly decrying "activist judges" who "legislate from the bench" now attempting to have similar legislation originate from behind the desks of justice department attorneys.)

Warrants are key to this mess, in no small part because they are key to the American notion of individual liberty in the face of governmental authority. In the framers' minds, the primary threat to the social context they wished to nurture was the arbitrary and unchecked exercise of power. That a political figure — a king, a president, a governor — should be able to act unilaterally, capriciously, and without review against private citizens was the very definition of tyranny in their eyes (and in their experience, lest we forget), and it was anathema. There is no greater violation to the concept of liberty enshrined in the Declaration and the Constitution. The remedy — also enshrined — is the law, which requires that executive action be checked by independent bodies known as courts, which independently review executive imperatives against the law of the land and independently permit or forbid action on that basis, explicitly privileging, in cases of dispute, the rights of the private citizen above those of the goverment. There is no clearer statement of this construction than in the 4th amendment, which stipulates that
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As the framers understood, the instant an authority can act without review against its citizens, that authority is absolute. That authority is a tyrant. So, for example, a president who claims the capacity to declare, unilaterally and without review or recourse by any independent body, a citizen of this nation to be an "enemy combatant" — a term with no legal definition or history, not that it would matter even if there were one, since in the president's construction no one is permitted to examine his designation for compliance with existing statutes — and to place that citizen in custody secretly, without a hearing, without proferred charges, without access to counsel or any other aspect of the judicial process, for an indefinite period of time.

Look at it this way. Under the authority the president claims for his office, there is, in theory, nothing whatever to stop him from declaring Barack Obama an "enemy combatant" tomorrow. He could then, by his claim, seize Senator Obama and incarcerate him at any place of his, the president's, choosing, with no hearing of any kind. By the president's contention, no one and nothing could stop this. The president has only, he declares, to utter the words "enemy combatant" and Senator Obama — or anyone else — could be made to disappear. No evidence need be produced to justify the claim; no judge need be persuaded, no tribunal convinced. The whim of one man is enough. There is nothing in the administration's construction to prevent the president from defining "enemy combatant" as anyone who mounts political opposition against him or against the Republican party; there is nothing to keep him from having them jailed; there is nothing to keep him from having their funders jailed, their campaign operatives, the men and women who come to their rallies. Any and all of these, according to the president's logic, could be removed not just from the political landscape but from the judicial landscape, which is to say from the human landscape. It is the legal foundation for dictatorship, and it is exactly what the founders composed the fourth amendment to prevent.

This is what I think of when I hear people declaim that there's no difference between the parties. It's what I think of when I hear supporters of Obama claiming they'll vote McCain or abstain if the nominee is Clinton; it's what I think of when I hear supporters of Clinton saying the same. I think of the signing statements, in which the president declares — openly, on the record — his intent to ignore or defy the duly passed laws of the land. In which he reserves this authority for himself, for his office, against all constitutional rebuke. I think of waterboarding, and I think of it being applied not to vicious terror suspects in the fevered heat of a fight in some foreign land but of it being applied here, at home, on US soil, to US citizens who have been labelled enemies of the state irrevocably by the unchallenged and unchallengeable whim of a single man. I think of states like Chile and Argentina, Congo, Egypt and now Russia, in which to oppose the state in any fashion is to risk prison or death — in which men and women can vanish, for decades, for ever, as a side effect of expressing conscience.

Are these things that Bush would do? I don't know. I don't think it matters. The framers didn't think it mattered, either — whether one man or another had proclivities toward tyranny. Men as a whole have such a proclivity, they thought; and history has confirmed it. Prevention cannot lie in the compassion of one man's soul. Prevention must lie in the mechanics of the system itself — in the floorboards, the walls. It must be fundamental, inalienable. It must be the law. And the law must be binding for everyone, or else it must be nothing at all.