The Odubya Factor

As President Obama goes to Moscow this week to try to repair the disastrous relationship with the Russians that Bush all but wrecked completely, the Double G talks with NY Times reporter Charlie Savage about the other messes Bush left behind, the civil liberties problems that Obama refuses to correct. As BooMan notes, there are disturbing precedents for an incoming President of a differing party to refuse to correct the mistakes of his predecessor.

Here is the part I want to discuss.

CHARLIE SAVAGE:...You know, I had this interesting conversation when I was working on this article that came out this morning with Jack Balkin at Yale Law School, and he compares this moment to when Dwight Eisenhower took over, in 1953, and after FDR and then Truman had built up the New Deal administrative state, which Republicans hated, but then Eisenhower, instead of dismantling it, just sort of adjusted it with his own policies a little bit, and kept it going. And at that point, there was no longer any sort of partisan controversy about the fact that we were going to have this massive administrative state; it just sort of became a permanent part of the governing structure of the country.

And in the same way he said in 1969 when Richard Nixon took over from LBJ, he did some adjustments to the great society welfare state that LBJ had built up, but he didn't scrap it. And at that point, Republicans and Democrats had both presided over the welfare state and the welfare state became part of just how government worked.

That in the same way, Obama now, by continuing the broad outlines of the various surveillance and detention and counter-terrorism programs, is draining them of plausible partisan controversy, and so they are going to become entrenched and consolidated as permanent features of American government as well, going forward.

It's an astute observation, and one I have warned about myself. Some things concern me more than others. At the top of my list is a concern about governmental electronic surveillance. I feel like we are entering a phase where we might lose any realistic legal expectation of privacy in our phone and computer correspondence. I see Obama's policies in those areas as a real threat.

I'm also concerned about indefinite detentions. You can question my libertarian credentials, but I am more willing than Greenwald to allow a degree of wiggle-room in cleaning up Bush's mess in regard to some of the high-value detainees we have in custody. For example, I am not in favor of releasing any of the detainees that were directly implicated in the 9/11 plot, so long as the government is willing to explain how the evidence was spoiled and to hold people accountable (by prosecuting them) for spoiling it. But I have two major reservations. First, I have not been convinced that the 9/11 detainees cannot be prosecuted in a normal court of law. Second, the plurality of detainees seem to have been improperly detained, and I don't want the government to engage in a cover-up of that fact or to create any new classes of people who are denied basic rights. I am sympathetic to the difficulties Obama inherited, but I can't forgive a perpetuation of the same mistakes.

And while I completely agree with BooMan and Greenwald on this point, I have to add that it's much less of Obama perpetuating the same mistakes as much as the Democrats not seeing as what Bush did as a mistake at all.

Look folks, Obama taught Constitutional Law as a professor. He knows the basic arguments behind habeas corpus, indefinite detainment, and rule of law. He's still abandoning basic legal principles, telling us to trust him, and not giving us any logical legal reason why. Bush did the same thing. As a result, these violations will become enshrined practice in America, and there's no reason they should be.

But the real threat isn't from cleaning up Bush's mess. The real threat is the broad anti-terror program of the United States and how it has the potential to undermine basic civil rights and the rule of law. And, here, any instances of the Obama administration examining the facts and coming to conclusions similar to the Bush administration are instructive. Put bluntly, I stopped believing the Bush administration very early on and they lost their credibility with me completely. When a Democratic administration looks at the same set of facts and comes to a similar conclusion, that does make me willing to step back with an open mind and reassess my assumptions. I haven't started defending that which I previously criticized, but I have, in some instances, decided to wait and listen.

But an open mind only goes so far. I may be newly willing to listen, but so far I haven't been convinced to think differently on these issues at all. While I am willing to allow for a grace period and to potentially reassess some of my assumptions, my basic disposition is that the Obama administration is embracing an Establishmentarian mindset that favors unconstitutional invasions of privacy and that sacrifices core human and civil rights needlessly.

In other words, there is no question that the Obama administration is an improvement of enormous magnitude, but they still must be opposed on many core issues or we will simply cede our rights to the interests of a surveillance state.

I tend to believe Double G on this. BooMan's willing to give Obama some benefit of the doubt. I'm not, because I know Obama is aware of the constitutionality of these Bush procedures, campaigned against them, and is making the decision to continue and even expand them. It's the expansion of these policies that go above and beyond even what Bush did that removes the doubt for me, coupled with the same refusal to explain why these policies are needed, that causes me to refer to Obama in this situation as President Odubya.

Still, BooMan is correct on his last point there: citizens of all political stripes should be opposing Obama on these violations of core contitutional issues, or we will be ceding our rights. In many ways, I fear we already have.