The Obama Administration and the Bill of Rights

For a long while last year, I flirted with the idea of voting for Obama.  But after he showed a lack of backbone on warrantless wiretapping and the Libertarian Party nominated a reasonably serious candidate, I found myself voting for Bob Barr.  Still, I had passionately backed Obama during the primaries and thought he was the most promising major-party Presidential nominee on civil liberties issues in a very, very long time.  As between Obama and McCain, there was no contest that Obama was the far preferable candidate.

Sadly, I am increasingly coming to the conclusion that the Obama Administration has an extraordinarily low regard for some of our most fundamental freedoms.   This conclusion is not based on any one incident, but on the accumulation of many small incidents.  This is also not to suggest that the Obama Administration is on the verge of creating a secret police or anything resembling the totalitarian visions of our nightmares.  But there comes a point where it becomes clear that concerns for certain freedoms simply are not entering into the decisionmaking process.

To be sure, Obama’s been better than Bush on Guantanamo Bay, torture, the Fourth Amendment, and medical marijuana raids.  Then again, “better than Bush” is a low bar on these issues, especially when you consider that these are issues that by and large played a key role in his getting the nomination and eventually winning office.  What has frustrated me far more about the Obama Administration, however, has been its performance on civil liberties issues that are less important to the liberal base of the Democratic Party.  This performance suggests that the Obama Administration’s interest in Constitutional liberties goes little further than is needed to keep the liberal base happy. 

What are these small incidents?  In no particular order:

1.  The NEA political art hubub.  The Right’s reaction to this largely seemed to me to be making a mountain out of a molehill – we’re talking after all about a conference call orchestrated by a very minor government agency primarily dedicated to soliciting artwork for a National Day of Service.  Still, there is something at least unseemly about the government telling artists to make more art similar to the “Hope” campaign poster. 

2.  The war on Fox News.  Yes, we all know that Fox News is hopelessly biased and pushes the envelope.  Yes, Presidents have been using access as a way of influencing news coverage from time immemorial.  Still, there is something at least unseemly about using the authority of the Presidency to tell people where they should get their news, while denying one of the most widely-used media outlets access to pool resources. 

3.  The use of official government websites to promote grassroots lobbying on healthcare reform.  Sure, government agencies lobby Congress all the time, and sure we have a long history of government agencies trying to mobilize support for things like the Drug War.  Still, there is something at least unseemly about using a bureaucratic agency’s resources to mobilize support for a political agenda as if it were a non-profit advocacy group.

4.  The request for reports of “misinformation” on health care reform on the White House Blog.  Sure, this was just intended as a successor to the “Fight the Smears” site from the campaign.  Still there is something at least unseemly about the use of a government website for reports of “misinformation” about a proposed policy. 

5.  The bizarre decision to prohibit a town in North Carolina from conducting non-partisan elections.  Perhaps this is a bit of a low-level action, but it is at a minimum unseemly to be prohibiting a non-partisan ballot on civil rights grounds in a town that is well over 50% African-American.

6.  The continued reliance upon signing statements.  Sure, Bush did it too, but if you were hopeful that the Obama Administration would signal a scaleback of Executive Power, this is not exactly an encouraging sign.

7.  Lobbying restrictions severely limiting the ability of interest groups to petition the government on stimulus funds.

8.  Perhaps most significantly – the co-sponsoring of a UN Commission on Human Rights resolution  (via Radley Balko) with Egypt.  On this, Professor Turley writes:

The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that “freedom of expression has been sometimes misused” and showing that the “true nature of this right” must yield government limitations.

His U.S. counterpart, Douglas Griffiths, heralded “this joint project with Egypt” and supported the resolution to achieve “tolerance and the dignity of all human beings.” While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

True, this resolution is non-binding.  As such, I’d be willing to downplay it if this were just a case of the Administration taking a “go along to get along” attitude in being willing to allow this resolution to pass.  But that is not, apparently, what happened here – as the excerpt above makes clear, the Obama Administration played an active role in working with Egypt to craft the resolution.  There is at the very least, something very unseemly about the United States government working with Egypt to pass a resolution that seeks to limit the definition of freedom of speech based on whether speech offends religious sensibilities.

 

The point here isn’t that the Obama Administration is waging some kind of covert war on the Bill of Rights.  To the contrary – only a handful of the above are even constitutional violations.  The problem, instead, is that the above show a pattern of acting as if the job of running the government is little different from the job of running a campaign, just with the muscle of the government backing it.   They show that respect for dissent and pluralism take a backseat to political concerns. 

Again, though, no one of the above events is catastrophic, and for the most part there are completely legitimate arguments for each.  But at some point the events build up enough that it becomes difficult to justify the overall pattern even as you may be able to justify the individual occurences. 

The Executive Power of the United States  government is vested solely in Barack Obama under the Constitution.  This is an increasingly awesome power which he holds on behalf not only of the people who voted for him, but also those that didn’t, and even people who watch Glenn Beck religiously.   Such power must be exercised cautiously, with a deep and abiding respect for the meaning that every Executive action carries with it. 

It may be completely desirous for artists to support Presidential initiatives, for Fox News to be more responsible in its journalistic practices, for Americans to get more involved in lobbying for health care reform, for falsehoods about reform to be corrected, for lobbyists to keep their paws off the stimulus package, and for us to achieve a better standing in the Muslim world.  But those goals should be accomplished with not only the letter, but also the spirit of the Bill of Rights and the Constitution in mind, not merely based on what is politically most expedient or effective.

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59 thoughts on “The Obama Administration and the Bill of Rights

  1. BO and his epigones are Marxists, what do you expect? We ain’t seen nothin’ yet!
    Great post, love the objectivity, analysis, and the search for the truth here at LOOG…keep up the good work!

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  2. As a supporter of Obama, I have to agree in general with Mark’s points. I could get defensive and point ut the ways in which the Bush Administration did the same or worse, but that is a weak argument that I myself would demolish (“but Mom, my sister stole twice as many cookies!”).
    Mostly, what I am objecting to is what Greenwald and others have identified as the Beltway or Village culture of insider knowledge, priviledge and mutual support.
    The acceptance of the expansion of the Imperial Executive in matters such as Gitmo, warrantless wiretapping, the clubbiness with Wall Street interests, even the backroom dealings with PhrMA about the health care reform.
    Probably the only area of agreement I would have with the Tea Party is the notion that private interests do have outsized influence over the government,and all too often it does seem as though the fix is in and the public interest is shut out.

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    • So, co-sponsoring a resolution that expresses that freedom of speech is limited by the right not to have one’s religious sensibilities offended with Egypt shows a concern for the First Amendment? And the ACLU, which took big issue with the lobbying restrictions, was just buying into right-wing framing? And we should be totally ok with the use of official agency websites for grassroots lobbying efforts directed at Congress?

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      • I agree that using gov websites to push legislation is inappropriate. However that relates to reason the war police action against Fox does not bother me much. Faux news has taken a partisan role in fomenting the tea parties. They have taken a step beyond just being a right wing news/opinion org, to being actively supporting one side.

        PS just because it has to be said allthough it is a wrong idea. Nothing Obama has done against the press is as bad as bush did. Ahhhh I feel better now.

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  3. I think this is fair summary. a couple of the incidents, like the nea call, were nothing but the better than bush is the best we can say. He has not been a paragon of civil liberties. Crazily being better than bush and following the general trend of the growth of presidential power that both parties have driven, makes him a Marxist or radical in some eyes. He is what he always has been, a mainstream cautious centrist with some liberal tendencies.

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  4. I’ll give you 3, 6, and maybe 8 (sounds bad, but it is nonbinding, as you say), and while I don’t think there’s a problem with the White House saying Fox News sucks, I’ll agree that they shouldn’t play credential games. (This total separation of politics and government you seem to advocate strikes me as a very peculiar notion–I’m not sure where the line should be drawn, but I don’t think it can ever be tidy.) The rest of it seems rather banal. The president hates freedom because he restricts lobbying? It’s almost like a parody of libertarian thought. Look, I’m not a reflexive Obama partisan and I will admit that a lot of the decisions he’s made on security have not been nearly liberal enough for me. He didn’t fight hard enough for a bigger stimulus, it doesn’t look like he’s going to break up the banks, etc. But all in all I can understand his decisions and I think he’s trying as best he can. What this post tells me is that the bar for hating fundamental liberties is absurdly low. And the examples you mention–“Guantanamo Bay, torture, the Fourth Amendment, and medical marijuana raids”–all strike me as far more substantial and important in the grand scheme of advancing liberty than your examples of his disregarding it.

    The man has certainly blown some calls. It’s inevitable. But if you’re going to make the claim that Obama doesn’t care about fundamental liberties, you’re going to have to do it much better than this. The examples don’t really add up to anything aside from things that seem to have mildly displeased you, the entire thing is so hedged it feels like you only half believe what you’re writing yourself, and the counterexamples to what you’re saying are too strong to ignore.

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    • The president hates freedom because he restricts lobbying? It’s almost like a parody of libertarian thought.

      Maybe it would be if Mark actually said it, but he didn’t. You’re putting words into his mouth. For crying out loud, he bends over backwards to avoid the very comment you just made.

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    • I know lobbyists aren’t terribly popular, but the First Amendment also has this right called the “right to petition.” The lobbyist restrictions referred to above came pretty close to being an outright ban on the right to petition.

      Moreover, I’m not saying that the President “hates freedom,” just that I am disturbed by how low Constitutional rights seem to rank on the priority list, definitely below scoring political victories. Civil liberties was the area that most concerned me last year; it was the area that led me to think Obama would be one of the better Democratic Presidents; and it was why, my vote for Barr notwithstanding, I had high hopes and expectations for Obama. Disappointing doesn’t even begin to describe my feelings about how he’s handled these issues, but that’s a far cry from suggesting that he “hates freedom.”

      As for what’s most important….the point was that those improvements have been tepid at best, and to the extent they’ve been improvements at all, they’ve been improvements that liberals would never forgive him for ignoring. It thus seems that his support of those improvements is, sadly, borne out of politics rather than out of any genuine concern for civil liberties.

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      • “It thus seems that his support of those improvements is, sadly, borne out of politics rather than out of any genuine concern for civil liberties.”

        A subjective, personal judgment. Much like this entire post. I don’t have anything more to say on the matter.

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  5. Looking at you list
    1, 2, 3, 4, 7 are absolute non-issues. No ones rights are being trampled on here.

    5 is troubling but I don’t know much about it. 8 is the only one of the items you listed that is actually something to worry about.

    On 2 Foxnews is a de-facto republican party outlet before you get upset at something the administration does with regard to them mentally substitute Republican national committee and see if it still bothers you.

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  6. I’d like a clearer definition of what your views on certain fundamental civil liberties are. Because on some level I think we have very different definitions on what these rights are. In general it seems you have a very positive rights view on freedom of expression, and view government efforts to block privileges for speech as something akin to censorship, while I (and I think some others here) are inclined towards a more negativist view. That is, unless the government is doing specifically against a list of specific freedoms, they can do whatever they want. I would argue that the only item where this dichotomy doesn’t hold is case 8, but given that this is a non-binding general assembly resolution, I’m not inclined to give it much weight.

    I do find the gap rather interesting, because one of the mantras I’ve often heard from libertarian leaning people is that their primary suggestion is that government only has a right to protect negative rights and should not be in the area of policing positive rights in any fashion. That is, no one has any particular positive right like access to healthcare, education, or competent legal counsel(outside of those provided for by the Bill of Rights), but people do have the right to be left alone to their possessions, etc.

    This is I think a dialogue worth having, on a philosophical level, but I fail to see how the government giving people positive rights or refusing to do so is somehow a fundamental misappropriation of freedom of speech.

    Indeed, in terms of transparency, government transparency measures, backing net neutrality regulatory ability for the FCC, sunlight measures, etc. are significantly more likely to have net beneficial effects on public rights than the listed items would have negative impacts on public rights.

    There are times (notably in terror detention) where I will strongly and absolutely criticize the administration under no uncertain terms. But this is a strange angle to go towards criticism, it’s grasping at straws in a direction when there’s significantly more egregious things to be critiquing.

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    • Nob: The whole negative v. positive liberties issue is always a fun discussion. One point of clarification here, though: in this post, I’m more discussing the Obama Administration’s revealed attitudes about Constitutional rights as they are fairly well-established. With the exception of Nos. 5, 6, and 7, all of these actions are almost certainly Constitutional (arguably, part of number 2 is unconstitutional); my problem is that the other actions show a general lack of respect for the spirit of pluralism that is supposed to underly liberal democracy. They tend to be examples of running the government as if it’s a campaign. This is fine in the legislative branch, but when you get into the Executive Branch, it becomes fairly problematic because these actions cannot be entirely separated from the weight of the enforcement side of government that is at Obama’s disposal. The administration appears tone-deaf to these implications.

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  7. Still, there is something at least unseemly about using a bureaucratic agency’s resources to mobilize support for a political agenda as if it were a non-profit advocacy group.

    I take it you lodged the same complaints when Bush put far more effort & money into online PR for social security privatization, convened a committee that was laughably biased, unqualified (Robert Johnson, really?), and undoubtedly expensive to study the issue, and held a large number of expensive townhalls with prescreened attendees. Bush absolutely dwarfed Obama on executive branch spending for the purpose of publicizing policy. Obama will easily go two terms without the same degree of waste and abuse of power in pursuit of public policy approval that Bush achieved on SS privatization alone.

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      • No numbers, but here’s the Executive Order authorizing the commission: http://en.wikisource.org/wiki/Executive_Order_13210

        The order authorizes the commission to use the resources of executive agencies, hire a staff, spend SSA money, and pay commissioners’ expenses. Looked around for the final numbers without any luck, but this sort of thing isn’t cheap. Nor were the numerous townhall meetings Bush convened. The order demands the commission return the desired result: “Modernization must include individually controlled, voluntary personal retirement accounts.” CATO lauded the commission and its reports… no issue with the libertarian implications of convening a kangaroo commission that was told what to conclude in advance.

        Many of Obama’s health care events are paid for by Organizing for America (obviously not including his travel and security).

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        • Zach,

          While I appreciate your disdain towards us libertarians and your citing an Executive Order, I asked for numbers. You said you can’t provide them. That’s fine. However, dumb guys like me are going to have a difficult time figuring out how you can make those claims regarding spending, especially so soon into the Obama Administration.

          Should I use a Ouija Board or get the Fairy Godmother’s cell phone number?

          just saying…

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          • Fair enough. Of course, I’ve seen folks here cite Obama violating his no-tax-hikes-under-250k pledge when in fact he’s passed the tax cuts he’s promised to the extent that Congress would allow (making work pay cut was reduced 25%, ironically to appease congressmen normally looking for tax cuts)… presumably using the same Ouija board.

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    • Sigh. Yes, I thought Bush was absolutely wonderful on civil liberties issues. I absolutely, positively never criticized him for that.

      Seriously – does this line of argument ever get old? I’m criticizing Obama on civil liberties issues, therefore I’m a hypocrite because Bush something, something. It would be nice if you actually took the time to find out what I was saying about Bush on civil liberties at the time. But, hey, I’m not a liberal and I’m criticizing Obama on civil liberties, therefore I’m just a hypocrite.

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      • It would strain the bounds of reality to not say bush was worse then the Big O on civil liberties, but that doesn’t make O correct on some the things Mark has listed.

        If anything we need more people yelping about civil liberties since it is a bit of a forgotten subject. And lord knows if you mention the term civil liberties as a liberal the genetically programmed response from many R’s is traitor, weak, hate America, blah blah blah.

        Mark you mentioned the right to petition and you feel corralling lobbyists may have violated that. You might talk about that more. I’m not sure where I see your point. We have a right to petition but I think the general criticism of lobbyists is that they get to buy all the politicians they want and have disproportionate access to pols.

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        • It would strain the bounds of reality to not say bush was worse then the Big O on civil liberties, but that doesn’t make O correct on some the things Mark has listed.

          Nor does it make bringing Bush into the discussion warranted or relevant. Let’s just discuss the issues on their relative merits which, thankfully, you have done an excellent job doing.

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        • Thanks, greg.

          On the lobbyist issue, there’s a reason I kept my point on that so brief. It’s one of those things where I either write a sentence on it or a book. I tend to think that most attempts to restrict lobbying are within the bounds of acceptability, if unlikely to achieve much good (and sometimes actively making matters worse….but that’s another topic entirely). But in this case, the Administration went so far as to outright ban contacts with lobbyists. The thing is that as much as we may dislike lobbyists, it is quite literally their job to petition government on behalf of their clients (not all of whom are giant corporations, by the way…often, they are non-profits or citizen groups). Anyone who wants to “petition the government” in a relatively significant fashion needs to register as a lobbyist. So as a practical matter, the restrictions on stimulus lobbying amounted to a near-complete bar on petitioning the government on that issue. Not good. Indeed, IIRC, a lot of the groups that were angriest about the action were of the sort that tend to get thought of as “public interest groups” (God, how I hate that term…..but again, that’s another story altogether).

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      • I’m not saying that Bush’s actions give Obama a free pass, but that practically all of your complaints have a more severe antecedent in the Bush administration. You say “sure, Bush did it too” in regards to signing statements; seems like an omission to leave that out of points 1, 2, 3, and 5 for starters.

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      • Obama supporters in particular need to hold his feet to the fire- the Glen Becks and Rush Limbaughs are dismissed as partisan hacks. In general with changes in Administrations, those decisions that are not contested are in effect ratified. If the Bush policies are not overturned, they become the normal way of doing things.

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        • There was a great quote from FDR from the mid 30’s, when asked about whether he was going to do some liberal type project. He said, and I paraphrase because I’m to lazy to use The Google, he said he wanted to but that his supporters need to make him do it.

          Even in the best circumstances Presidents face a plethora of people wanting their time/support/energy and have a lot of voices in their ears telling them to do this, that or the other thing. His supporters need to keep after him like they have on health reform.

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  8. The Obama’s record on civil liberties is pretty weak, but the post would be stronger if it actually offered an argument for why particular practices violated the BoR rather than repeatedly characterizing them as “unseemly.” In fact, I find the portrayal of Obama’s exercising his free speech rights to criticize Fox as a violation of the BoR “unseemly.”

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    • Once again, it’s not Obama being critical of Fox that is the problem. He can be critical of Fox if he wants. I daresay he probably should be critical of Fox; I am critical of Fox. To understand the point, you should stop looking at Fox and saying “I don’t like Fox because [x].” Fox is not the issue. Like it or not, Fox is a major outlet for reporting the news and whatever objective criteria exist for deciding what a “news organization” is, Fox meets them. Therefore, while performing an official activity, the President and his aides should* not engage in viewpoint discrimination against Fox or anyone else. They should* do the government’s business in as evenhanded and fair a manner as they can — because the President is the President of all the people, not just the President of the people who watch MSNBC.

      * Note my use of the normative rather than the imperative.

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      • How is Obama “discriminating” against Fox? Ultimately, the WH is a political institution that always wages political war against its enemies and even leverages access for better coverage. That’s politics.
        If the WH tries to use the coercive arm of government against news outlets (e.g., Nixon), then we should get upset.
        But to say that WH spokespeople engaging in political attacks against their political enemies violates free speech is to trivialize the 1st amendment.

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  9. In general this is reasonable but Faux has gone a step farther in actively promoting protests against O. that is not a journalistic activity, but the actions of a partisan actor.

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  10. A few quick comments.
    1) Mark did say these were small incidents, people. Get a grip.
    2) I have no problem at all with #4. I do not find it unseemly at all that the administration would want to know the misinformation present in the health care debate. How else are they to combat it? Sure, they could go over to Redstate or Drudge, but if they know the disinformation before it gets out to a larger audience, they might be able to better address it. Seems as if the people worked up over this issue are the people who think Obama is going to control their access to Redstate via net neutrality and not otherwise sane people.
    3) #6 is not, to me, a minor issue. The imperial presidency needs to be stopped.
    4) #7 is tough for me. I loathe the influence of special interests as much as anyone, but I’d much prefer politicians that were more principled rather than lobbying restrictions.

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  11. The bizarre decision to prohibit a town in North Carolina from conducting non-partisan elections. Perhaps this is a bit of a low-level action, but it is at a minimum unseemly to be prohibiting a non-partisan ballot on civil rights grounds in a town that is well over 50% African-American.

    Actually, I think that was why the civil rights argument had salience.

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  12. To be sure, Obama’s been better than Bush on Guantanamo Bay, torture, the Fourth Amendment, and medical marijuana raids

    And not using the Justice department to disenfranchise voters and otherwise influence elections, and not staging riots to prevent vote-counting. By all means, protest when Obama does something questionable, but keep things in context. You can’t say “extraordinarily low” about things which have just gotten much higher.

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  13. This is remarkably weak sauce as a list of allegations and accusations. As for the tired trope about better than Bush – well, let’s talk about torture, shall we? This is a laundry list of yes, trivialities, linked by the claim that they are “unseemly”. Unseemly in whose eyes, exactly? And what does unseemly mean in actual constitutional and legal terms? Apparently, nothing, zip, zero. Well, I’d say it’s pretty unseemly to peddle this sort of tripe and claim to be interested in liberties – no-one who voted for Bob Barr is in any sort of position to claim to defend them. Let’s remember who it was who tried to undermine separation of church and state, gave a keynote speech to a racist and anti-immigrant group, sponsored DOMA… why yes, Bob Barr!

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    • I voted for Barr. Not because I like him, or his past, but as a protest vote, a vote that would suggest that there was at least one more voter that wasn’t buying what the two parties were selling. I’m glad that Obama won over McCain. However, my misgivings about Obama have been proven more correct than I wish. I’m relieved that I don’t have to have the guilt that those Republicans that voted for W. or those Progressives that voted for Obama must certainly feel.

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    • Nick,

      When we’re done can we talk about the similarities between Bush and Obama on the war on terror? Brother Will had this article in a minipost some time ago and it didn’t seem to generate much discussion:

      http://www.tnr.com/article/politics/the-cheney-fallacy?id=1e733cac-c273-48e5-9140-80443ed1f5e2#

      If Mark’s post is flawed, it was using the Obama’s Administration executive order closing Guantanamo Bay as a proxy for the Administration’s position on the War on Terror. Given the other policies, I would say very little has improved. That may change if the Administration takes a stand against some of the PATRIOT Act but I’m not going to hold my breath.

      Being Bush-lite may be better than Bush but I don’t think that’s a distinction I’d be proud of.

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  14. A lot of the items Mark mentions are indeed legitimate problems — or at least there is enough there to merit discussion about whether they are. There is also quite obviously a fairly (at this point) devastating critique to be made of this administration on the Bill of Rights. Unfortunately, that critique has almost nothing to do with the items raised here. (I say ‘almost’ — a few points do pertain). To get to the serious Bill of Rights critique, you have to get into the stuff “important to the liberal base of the Democratic Party,” not because what they think must be what matters, but because in this case what they (along with many others) happen to be concerned with is what most matters. To put a post under this title and not want to deal with those things (out of what based on the writing is hard to think is anything other than partisan preference — but the reason is immaterial) makes for quite an unsatisfying reading experience based on the expectations raised by both the title and by usually superior analysis. Oh well — next time.

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