Of all the talk about Obama sprinting for the "center," nothing is more false than suggesting that undermining civil liberties and the rule of law is "centrist." Yet that is a frequent premise among reporters and even some Obama supporters, like Andrew Sullivan's "prudent" approval of "tacking to the middle." At The American Conservative, Daniel Larison shreds this charade:

One of the most disturbing things about "mainstream" reaction to Obama's reversals, particularly the reversal regarding the FISA legislation, is the idea that defending the Fourth Amendment against egregious, systematic violation by the government is some far-out extremist position that must be watered down or abandoned in order to appeal to "the middle." If I were in the political "middle," I would be deeply offended by the idea that supporting the gutting of core civil liberties is required to win my vote. If it is true that voters in "the middle" will reward assaulting constitutional protections for the illusion of security, some constitutional liberties won't have much of a chance of surviving another administration like this one. To be clear, this is not just a question of granting telecom immunity, undesirable as that is, but it is a question of resisting warrantless–and therefore illegal–wiretapping.

Then Larison takes on the apologists for police-state policies within the Obama camp:

I would add that the reflex of some Obama supporters to justify his reversal on the FISA legislation in terms of prudence and/or the political need to "move to the center" reinforces the unhealthy and dangerous pattern of identifying policies that subvert civil liberties and expand the power of government in the name of national security as "centrist." This makes dissent from such terrible policies to be extremist by definition, which works to marginalise the genuinely more moderate, prudent and (in my view) properly conservative arguments against increasing the power of the security state.

Comments (23)

1. So at this point Obama is worse on civil rights issues than the American Conservative.

   Great.

   Posted by Poppolphil at 07/07/2008 @ 02:07am

2. Obama courts not the center but attempts to defang the right by adopting their stance(s).

   Triangulation, the Clintons called it.

   Cooptation, Tony Blair called it.

   Regardless of label, the result is the same. Rightwing policies from a self-styled centrist govt.

   Obama wants to be the next emperor, not the next FDR, & certainly not a late RFK imitator.

   Posted by sloper at 07/07/2008 @ 03:05am

3. Now that he apparently has the nomination sewn up, Obama shows who he truly is. Nothing he has said since the primaries suggests a president I can believe in, nor does it suggest an intention to respect the constitution more than Bush has.

   Posted by mansobravo at 07/07/2008 @ 03:34am

4. The reason why domestic spying without judicial oversight now qualifies as "centrist" is that our corporate media did so poor a job of explaining what was happening when the program started that they seemed to endorse the idea. Not being willing to apologize for their incompetence, they have now re-defined the idea as "centrist," so that their de facto endorsement doesn't seem so bad. They'd define the idea as "liberal" if they could, but fortunately there are still enough real liberals left to object effectively to this ruse.

   There's no way that most conservatives will join our lone friend of the Fourth Amendment, Daniel Larison. The most recent legislation, the piece that Obama approved, protects the telecom companies that participated in the spy program from lawsuits. Let's see, shall we protect individual privacy, or shall we shield corporations against class-action lawsuits? This isn't a difficult decision for most conservatives to make.

   Nonetheless, Mr. Larison, bully for you and your independent mind!

   There are other conservatives like this. There's Bruce Fein, for example, who agrees with John Nichols that Cheney and Bush should be impeached.

   Although I do like hearing about conservative virtues, those rare diamonds that glint from heaps of toxic gravel, I also find it somewhat odd that we focus so much upon them. We also focus a lot upon the vices of liberals - such as Ralph Nader. Somehow, fellow liberals, I don't believe this serves our cause, since it obscures the general truth that most political virtues, in fact, are liberal ones, and that we liberals generally possess more of them.

   Posted by JakobFabian at 07/07/2008 @ 08:07am

5. The reason why domestic spying without judicial oversight now qualifies as "centrist" is that our corporate media did so poor a job of explaining what was happening when the program started that they seemed to endorse the idea.

   Posted by JakobFabian at 07/07/2008 @ 08:07am

   This hits the nail rigtht on the head. Our MSM Cannot even seem to get the facts straight on the (old) FISA, and what it allowed.

   Posted by Hman23 at 07/07/2008 @ 10:06am

6. If they did, they'd either be agreeing with the Left (and the American Conservative writer on the Right) about the 4th Amendment (can't do that)...or they'll be agreeing with the expansion of FISA ...and agreeing with Obama (can't do that either).

   So they'll use it as a stick to say "See, lefties, Obama can't be trusted"...but ask them what they think of what he did on FISA...and they'll clam up.

   Posted by Maskbeta at 07/07/2008 @ 06:59am

   Wrong again oh Masked man.

   As I have noted on other threads, Mr Larisen is just as guilty as the left of misapplying the constitution to what the warrantless surveillance really is. SCOTUS has consistently stated that the president has inherent authority for national security to conduct warrantless surveillance as long as it is not used for criminal prosecution. That is the heart of the 4th amendment protection.

   The 4th amendment is there to prohibit the govt from "unreasonable" searches and seizures that would allow them to criminally prosecute you.

   Every president since FDR has used these tools without need of the courts in order to conduct surveillance necessary for national security.

   I have no concerns about a possible president Obama using the same power if he becomes president. His willingness to approve this legislation merely shows that 1)he knows he cannot be elected without moving to the center, and 2)he also recognizes that as president, he will need the same tools to fight terrorism.

   Posted by lvliberty1 at 07/07/2008 @ 10:33am

7. he will need the same tools to fight terrorism.

   Posted by lvliberty1 at 07/07/2008 @ 10:33am

   what terrorism?

   maybe you should worry about the 35 or so people MURDERED WITH FIREARMS EVERYDAY in your own country first.

   if that many people were blown up by someone yelling "jihad!", you'd have yemen turned to glass.

   why do you ignore the REAL problem?

   Posted by frosty zoom at 07/07/2008 @ 11:29am

8. OR consistant in your view of a "strict Constructionalist" view of the Constitution.

   Posted by Maskbeta at 07/07/2008 @ 12:17pm

   Took the words right out of my mouth.

   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.

   Nothing in the text about "criminal prosecutions.

   Posted by Hman23 at 07/07/2008 @ 1:04pm

9. 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.

   Nothing in the text about "criminal prosecutions.

   Posted by Hman23 at 07/07/2008 @ 1:04pm

   And as we have previously debated, you don't apply the same standards in war prosecutions. That has been the consistent understanding throughout our history, and has been addressed by SCOTUS.

   What you and other leftists want to do is dismantle or ignore international law regarding the conduct of war and subject us to the breakdown of our ability to conduct war by equating war actions with domestic criminal prosecution.

   If successful, Justice Scalia put it correctly; you will destroy this country and our ability to defeat it's enemies.

   Veronica v Acton and Griffin v Wisconsin

   <I> Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant, Skinner, supra, at 619. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted).</I>

   It is true that there have been some exceptions to the warrant requirement. Chimel v. California, 395 U.S. 752 (1969); Terry v. Ohio, 392 U.S. 1 (1968); McDonald v. United States, 335 U.S. 451 (1948); Carroll v. United States, 267 U.S. 132 (1925). But those exceptions are few in number and carefully delineated, Katz, supra, at 357; in general, they serve the legitimate needs of law enforcement officers to protect their own well-being and preserve evidence from destruction. Even while carving out those exceptions, the Court has reaffirmed the principle that the "police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," Terry v. Ohio, supra, at 20; Chimel v. California, supra, at 762.

   Court Review upholding the warrantless provisions.

   "NATIONAL SECURITY AGENCY CENTRAL SECURITY SERVICE Fort George G. Meade, Maryland UNITED STATES SIGNALS INTELLIGENCE DIRECTIVE 18 27 July 1993 http://cryptome.org/nsa-ussid18.htm

   The Fourth Circuit recognized that the Supreme Court had never considered the constitutionality of warrantless government searches for foreign intelligence reasons, but concluded the analytic framework the Supreme Court adopted in Keith–in the case of domestic intelligence surveillance–pointed the way to the line the Fourth Circuit drew. The Court in Keith had, indeed, balanced the government's interest against individual privacy interests, which is undoubtedly the key to this issue as well; but we think the Truong court misconceived the government's interest and, moreover, did not draw a more appropriate distinction that Keith at least suggested. That is the line drawn in the original FISA statute itself between ordinary crimes and foreign intelligence crimes.

   It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: "We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." 407 U.S. at 321- 22.30 But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and "ordinary crime." Id. at 322. It pointed out that "the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes." Id.

   Supreme Court's Special Needs Cases

   The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court's approval of entirely warrantless and even suspicionless searches that are designed to serve the government's "special needs, beyond the normal need for law enforcement." Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted)) (random drug-testing of student athletes).32 Apprehending drunk drivers and securing the border constitute such unique interests beyond ordinary, general law enforcement. Id. at 654 (citing Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez- Fuerte, 428 U.S. 543 (1976)).

   Conclusion

   FISA's general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from "ordinary crime control." After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date. We acknowledge, however, that the constitutional question presented by this case–whether Congress's disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court's special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning. Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.

   Accordingly, we reverse the FISA court's orders in this case to the extent they imposed conditions on the grant of the government's applications, vacate the FISA court's Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.

   http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

   http://2002FISAruling.notlong.com

   Posted by lvliberty1 at 07/07/2008 @ 1:37pm

10. LIBERTY -

    Have we declared war under any notion of international law?

    Posted by Hman23 at 07/07/2008 @ 1:45pm

11. LIBERTY -

    Have we declared war under any notion of international law?

    Posted by Hman23 at 07/07/2008 @ 1:45pm

    A typical leftist straw man. As you well know, the US has not made a formal declaration of war since WWII. Yet it hasn't stopped us from any of our armed conflicts since that time.

    It is a moot point except to anti-war types like yourself.

    I would add that this president like those before him have had the defacto war authorization with each spending authorization to conduct military operations.

    That is all Congress has to do to stop any military action taken by a president. Yet, we have seen that the Democrats lack the political will and/or the numbers to do so.

    Unless and/or until there is a SCOTUS decision striking down the constitutionality of the 1973 WPA, presidents will continue to exercise their inherent authority to defend the national security and the national security interests subject to Congressional oversight and spending authorizations.

    Posted by lvliberty1 at 07/07/2008 @ 2:07pm

12. Some Expert Testimony on the subject:

    <Addendum 3/30/06

    STATEMENT OF JAMIE S. GORELICK DEPUTY ATTORNEY GENERAL

    BEFORE THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE

    U.S. HOUSE OF REPRESENTATIVES CONCERNING WARRANTLESS PHYSICAL SEARCHES CONDUCTED IN THE U. S. FOR FOREIGN INTELLIGENCE PRESENTED ON

    JULY 14, 1994

    Mr. Chairman and Members of the Committee:

    You have asked for my views on the provision of the Senate Select Committee on Intelligence's counterintelligence bill that establishes a procedure for court orders approving physical searches conducted in the United States for foreign intelligence purposes.

    At the outset, let me emphasize two very important points. First, the Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.

    Rule 41 of the Rules of Criminal Procedure requires a judicial warrant to search and seize (1) property that constitutes evidence of a crime; (2) contraband, that is the fruits of a crime or things otherwise illegally possessed; or (3) property designed or intended for use as the means of committing a crime. Normally, the federal officer conducting the search is required to serve a copy of the warrant on the person whose property is being searched and to provide a written inventory of the property seized.

    These rules would defeat the purposes and objectives of foreign intelligence searches, which are very different from searches to gather evidence of a crime. Physical searches to gather foreign intelligence depend on secrecy. If the existence of these searches were known to the foreign power targets, they would alter their activities to render the information useless. Accordingly, a notice requirement, such as exists in the criminal law, would be fatal.

    Likewise, only in extremely rare cases could a good faith representation be made that the purpose of the search was to gather evidence of a crime. In addition, because of the nature of clandestine intelligence activities by foreign powers, it is usually impossible to describe the object of the search in advance with sufficient detail to satisfy the requirements of the criminal law.

    Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise. Information gathering for policy maker and prevention, rather than prosecution, are its primary focus. Prosecution is but one of many possible options that may be pursued at a later date. The Rule 41 requirements for the purpose of the search and ultimate notice to the person searched simply cannot be squared with the clandestine nature of searches directed at foreign powers or their agents.

    This fundamental difference was recognized by congress when the Foreign Intelligence Surveillance Act was enacted. In FISA, the privacy interests of individuals are protected not by mandatory notice but through in-depth oversight of foreign intelligence electronic surveillance by all three branches of government and by expanded minimization procedures.

    The Department of Justice has consistently taken the position that the Fourth Amendment requires all searches to be reasonable, including those conducted for foreign intelligence purposes in the United States or against U.S. persons abroad. </b>For the reasons I just mentioned, however, we believe that the warrant clause of the Fourth Amendment is inapplicable to such searches.</b> We are satisfied, therefore, that Attorney General approval of foreign intelligence searches pursuant to the President's delegation of authority in Executive order 12333 meets the requirements of the Constitution.

    Posted by lvliberty1 at 07/07/2008 @ 2:22pm

13. Posted by lvliberty1 at 07/07/2008 @ 2:07pm

    So how is the War on Drugs any different?

    Posted by Hman23 at 07/07/2008 @ 2:28pm

14. So how is the War on Drugs any different?

    Posted by Hman23 at 07/07/2008 @ 2:28pm

    I can't believe you are even serious in asking that question.

    That's like trying to compare a squad car pulling over a speeder with a platoon going engaged in hostile fire with an enemy.

    The War on Drugs is a cute title but it is not a war. We don't have the Colombian Cartel plotting to destroy the US and kill US citizens wherever they find them.

    Posted by lvliberty1 at 07/07/2008 @ 2:34pm

15. Posted by lvliberty1 at 07/07/2008 @ 2:34pm

    I was just thinking the same thing about the War on Terrorism.

    Posted by Hman23 at 07/07/2008 @ 3:22pm

16. I was just thinking the same thing about the War on Terrorism.

    Posted by Hman23 at 07/07/2008 @ 3:22pm

    Well, there's your problem. Al Qaeda, Hezbollah, Islamic Jihad, PFLP (think Pan Am flight 103) and the myriad other terrorist organizations have been steadily upping their action to kill us for about 30 years now.

    I would think you would understand their intentions by now.

    http://library.thinkquest.org/CR0212088/tertime.htm

    http://intellit.muskingum.edu/terrorism_folder/terrorismrefweb.html

    "In Slough, Sheik Omar spent much of his time Thursday night regaling his young followers with the erotic delights of paradise -- sweet kisses and the pleasures of bathing with scores of women -- while he also preached the virtues of death in Islamic struggle as a ticket to paradise.

    He spoke of terrorism as the new norm of cultural conflict, "the fashion of the 21st century," practiced as much by Tony Blair as by Al Qaeda.

    "We may be caught up in the target as the people of Manhattan were," he told them.

    And he warned Western leaders, "You may kill bin Laden, but the phenomenon, you cannot kill it -- you cannot destroy it."

    "Our Muslim brothers from abroad will come one day and conquer here and then we will live under Islam in dignity," he said.

    Patrick E. Tyler reported from Luton, Slough and London and Don Van Natta Jr. from London. Souad Mekhennet contributed reporting from Germany."

    http://www.militantislammonitor.org/article/id/35

    Posted by lvliberty1 at 07/07/2008 @ 3:35pm

17. But many terrorist groups get their funding by selling drugs, so could you not use your logic to use war rules to conduct the "war" on drugs?

    And, when does this GWOT end? The battlefield is the entire world, terrorism has been a weapon for centuries.

    Posted by crabwalk at 07/07/2008 @ 5:14pm

18. THEY'LL EAT YOUR CHILDREN!!!!!

    WITH SPOONS!!!!!

    Posted by frosty zoom at 07/07/2008 @ 9:03pm

19. Well, if you can't trust "www.militant islam monitor.or" for a reasoned, un-biased viewpoint on terrorism and Islam....who CAN you trust?

    LOL

    Posted by Maskbeta at 07/07/2008 @ 8:36pm

    I'm beginning to believe you really do hate this country. You're no better than Rese.

    Posted by lvliberty1 at 07/07/2008 @ 11:17pm

20. BOO!

    [WASHINGTON, June 15 (Reuters) - A journalistic investigation into terrorism suspects held at U.S. prison camps around the world found that possibly hundreds had been wrongly imprisoned, McClatchy newspapers said on Sunday.

    ..."As far as intelligence value from those in Gitmo, I got tired of telling the people writing reports based on their interrogations that their material was essentially worthless," a U.S. intelligence officer said in an e-mail, using the military's slang Guantanamo.]

    BTW Luvvy, the Columbians do capture and kill Americans.

    Posted by crabwalk at 07/08/2008 @ 07:42am

21. Luvsliberty, a man that supports making more terrorists:

    [A McClatchy investigation found that instead of confining terrorists, Guantanamo often produced more of them by rounding up common criminals, conscripts, low-level foot soldiers and men with no allegiance to radical Islam - thus inspiring a deep hatred of the United States in them - and then housing them in cells next to radical Islamists.

    Soldiers, guards or interrogators at the U.S. bases at Bagram or Kandahar in Afghanistan had abused many of the detainees, and they arrived at Guantanamo enraged at America.

    The Taliban and al Qaida leaders in the cells around them were ready to preach their firebrand interpretation of Islam and the need to wage jihad, Islamic holy war, against the West. Guantanamo became a school for jihad, complete with a council of elders who issued fatwas, binding religious instructions, to the other detainees.

    Rear Adm. Mark H. Buzby , until recently the commanding officer at Guantanamo, acknowledged that senior militant leaders gained influence and control in his prison.]

    Posted by crabwalk at 07/08/2008 @ 07:56am

22. News from another communist America hater:

    [WASHINGTON -- The Army general who led the investigation into prisoner abuse at Iraq's Abu Ghraib prison accused the Bush administration Wednesday of committing "war crimes" and called for those responsible to be held to account.

    The remarks by Maj. Gen. Antonio Taguba, who's now retired, came in a new report that found that U.S. personnel tortured and abused detainees in Iraq, Afghanistan and Guantanamo Bay, Cuba, using beatings, electrical shocks, sexual humiliation and other cruel practices.

    "After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes," Taguba wrote. "The only question that remains to be answered is whether those who ordered the use of torture will be held to account."

    Taguba, whose 2004 investigation documented chilling abuses at Abu Ghraib, is thought to be the most senior official to have accused the administration of war crimes. "The commander in chief and those under him authorized a systematic regime of torture," he wrote.

    ...One of the Iraqis, identified by the pseudonym Laith, was arrested with his family at his Baghdad home in the early morning of Oct. 19, 2003. He was taken to a location where he was beaten, stripped to his underwear and threatened with execution, the report says.

    "Laith" told the examiners he was then taken to a second site, where he was photographed in humiliating positions and given electric shocks to his genitals.

    Finally, he was taken to Abu Ghraib, where he spent the first 35 to 40 days in isolation in a small cage, enduring being suspended in the cage and other "stress positions."

    He was released on June 24, 2004, without charge.]

    Posted by crabwalk at 07/08/2008 @ 07:58am

23. It sure looks to me like the fearful neo-cons bought up the propaganda being fed to them by the gub-ment they so often despise. What would cause that? Pants shitting fear.

    Black is white, down is up and the Imaginary Friends will give us a moral guide filled with contradictions and illusory prophecies. Yeah Baby!

    Posted by crabwalk at 07/08/2008 @ 08:04am