Liberty and democracy are at stake in this election

Wendy Kaminer, one of America’s most respected free speech warriors and the author of numerous books, has joined spiked as a columnist. Her column, on life, liberty and politics in the US, will appear monthly. In this second instalment, she argues that in the forthcoming election, America’s civil liberty and democratic government are at stake.

Finally, this most portentous of presidential elections is underway with early voters crowding the polls in swing states like Florida and Colorado. Barack Obama remains remarkably equable, whether enduring the vicissitudes of the campaign or contemplating his possible victory, but many Democrats are as manic depressive as the stock market, convinced that they should win and terrified that they’ll lose.

For Democrats and liberal civil libertarians (like me), as well as some moderate, anti-Bush Republicans and libertarians on the right, the prospect of a McCain/Palin victory is simply unthinkable – a legal, social, economic and foreign policy disaster from which we can’t imagine recovering, especially after the devastation wrought by Cheney and Bush. (Some McCain/Palin supporters are equally horrified that the man they regard as a terrorist-sympathising socialist might become president.) Elections are always deemed incredibly important, even transformational, by the candidates competing in them, the campaign advisers who have bet their careers on a win, and by partisan activists, idealists and professional ideologues. So I risk being accused of the usual hyperbole when I say that the stakes in this election defy exaggeration. But they do.

Put aside McCain’s obvious, acknowledged lack of economic sophistication or expertise. (‘The issue of economics is not something I’ve understood as well as I should’, he admitted during primary season, adding that he was reading Alan Greenspan’s book – to learn how to create a catastrophic housing bubble, I guess.) Put aside his notoriously explosive temper and reputed warmongering. (‘He loves war’, one of his Senate colleagues remarked to me.) Put aside, at least for the moment, the chance that the indisputably ill-informed, frighteningly overconfident Sarah Palin might ascend to the presidency during McCain’s first term, given his age and history of melanoma. Simply consider the consequences of a McCain/Palin victory for civil liberty, separation of powers and our constitutional vision of democratic government.

In the past eight years, the Bush administration, led by vice-president Cheney, has advanced an imperial presidency (or ‘unitary executive’) that claims the power to declare war (an exclusive constitutional prerogative of Congress), torture people and imprison them forever without the promise of judicial review, conduct covert, warrant-less surveillance of Americans, and ignore or amend legislative mandates through presidential signing statements, which appropriate to the executive the authority to make our laws, not just implement them. The next president will determine whether these new dictatorial powers are modified or concreted.

Neither Obama nor McCain is likely to cede all the powers appropriated by Cheney and Bush, but Obama is much more likely to cede some, at least indirectly, through his Supreme Court appointments. The next president is virtually certain to appoint one to three new justices to the precariously balanced court, which is already tilting far right. Justice Stevens, a moderate Republican appointee, who generally votes with what is now the court’s liberal wing, is 88 years old. Justice Souter, another relatively liberal voice on today’s court (appointed by George HW Bush) is rumoured to be anxious to retire. Justice Ginsberg, a Clinton appointee and former American Civil Liberties Union attorney (who greatly advanced the fight for sexual equality), is in her seventies and rumoured to be in precarious health.

Justice Breyer, a moderate Clinton appointee, is also in his seventies; so is Justice Kennedy, a conservative Reagan appointee who has broken with the court’s extreme right wing in several important civil liberties cases, including Boumediene v Bush, a five-to-four decision that restored habeas corpus rights of judicial review to non-citizens designated enemy combatants and imprisoned at Guantanamo. (Boumediene struck down 2006 legislation, supported by John McCain, which essentially codified the administration’s policies.) The four dissents in this historic case were by Justices Scalia and Thomas (Reagan and George HW Bush appointees, respectively) plus Chief Justice Roberts and Justice Alito, both appointed by George W Bush.

Due process and freedom from dictatorial rule may be as fragile as this five-to-four majority in Boumediene. McCain has already promised the right-wing Republican base that he will appoint ultra-conservative justices like Samuel Alito and John Roberts, who support the administration’s breathtaking expansions of executive power. Citizens will be less vulnerable than legal or illegal immigrants (the court was less sharply divided in upholding the habeas rights of citizens), but all Americans are threatened by the unprecedented concentration of power in the president, as evidenced by the administration’s warrant-less wiretapping programme and its promulgation of notoriously inaccurate terrorist watch-lists summarily and covertly used to deny people credit, employment, or the right to fly. (Watch-list abuses were chronicled in a 2007 report by the San Francisco Bay Area Lawyers Committee for Civil Rights.) A new, ultra-conservative majority would also eliminate constitutional rights of reproductive choice and severely curtail remaining guarantees of secular government and the rights of criminal suspects.

McCain would probably prevail in appointing at least one justice to form a far-right majority on the court, even if Democrats acquire a relatively solid Senate majority. The Senate rarely rejects a president’s Supreme Court nominee, and Democrats have generally acceded to Bush administration power grabs, voting for the Patriot Act in 2001 and recently, in 2008, approving the administration’s proposed amendments to federal wiretapping legislation, including a grant of retroactive immunity to telecom companies that broke the law to enable the secret surveillance of their customers.

Barack Obama was among the senators who voted for the wiretapping bill, enacted during the campaign, to the anger and dismay of his civil libertarian supporters. He is a politician, after all, and a vote against the bill, which would not have blocked its passage, could have been a major liability. (Obama’s history, and his vision of ‘post-partisanship’, suggests that he is a deliberate, pragmatic consensus-builder likely to disappoint liberals and pleasantly surprise conservatives.) Civil libertarians have had reason to temper their hopes about Obama, a former constitutional law professor, but there’s no question that he would be more sensitive to civil liberty than McCain and would likely leave us with a centrist Supreme Court that respects the separation of powers rather than an arch conservative one that would serve an imperial president.

There is already so much damage to undo. If the first priority for the next president intent on curbing gross abuses of power is restoring respect for due process, habeas corpus and legislative and judicial prerogatives generally, the second is restoring some measure of integrity to an executive branch deeply corrupted by cronyism and the pervasive intrusion of partisan politics into the justice system.

One of the more egregious scandals of the scandal-ridden Bush years involved the politicisation of the US Department of Justice (DoJ) which led to the resignation of disgraced former attorney general and long-time Bush sidekick, Alberto Gonzalez. As a Congressional investigation eventually revealed, justice department lawyers were selected on the basis of partisan political affiliations by Republican operatives to whom Gonzalez delegated hiring authority. (This may sound like business as usual, but partisanship at the justice department is not usually so unabashed.) US attorneys (who direct federal prosecutions nationwide) were purged for declining to cede to partisan political demands: in New Mexico, for example, David Iglesias was fired after he refused to file pre-election indictments against Democratic office holders, as requested by a Republican congresswoman. In Seattle, John McKay was fired after declining to pursue voter fraud allegations after a Democratic victory in a very close gubernatorial election. (An investigation by DoJ internal watchdogs into the firings was stymied by the refusal of White House and DoJ officials to cooperate; a special prosecutor, of limited independence, has taken over the inquiry.)

Senator McCain was not implicated in the Justice Department purges, but a President McCain would be deeply indebted to the right-wing Republican machine that engineered them and has directed his campaign. Indeed, the McCain campaign and its allies have embarked on their own very questionable crusade against alleged Democratic voter fraud, which may at least succeed in raising doubts about Obama. In Indiana, for example, Republicans have gone to court, so far unsuccessfully, to shut down early voting centres in low-income African-American neighbourhoods.

In other key states, like Ohio, Republicans have sought to disqualify voters because of minor discrepancies (like typographical errors) on their voter registration forms. (The Supreme Court invalidated the Ohio challenge on technical grounds.) Meanwhile, news of a last-minute federal investigation into ACORN, a community activist group involved in voter registration, was recently leaked to the media. (ACORN has been grossly mismanaged and is trying to recover from an embezzlement scandal, but that is not the subject of Republican complaints.)

So Obama supporters have reason to veer between cautious hope and high anxiety. Obama’s lead is either widening or shrinking, nationally and in a few swing states, depending on which poll you believe, on which day, although he appears to have gained strength among key groups of voters (white Catholics, seniors, and independents), and his favourability ratings are up while McCain’s and Sarah Palin’s are down. A majority of voters now regard her as unqualified, and she continues to demonstrate confusion even about the role of vice president, wrongly asserting recently that the VP is in charge of the Senate.

Palin’s critics, who deem her selection an indictment of McCain, include high-profile Republicans and conservative commentators, like former secretary of state Colin Powell, former Reagan solicitor general and McCain adviser Charles Fried, and Reagan speechwriter, Peggy Noonan. McCain advisers are said to be angry, depressed and engaging in the backstabbing that often accompanies defeat. (Palin is said to be preparing for a run in 2012.) Still Democrats are not exactly confident: instead, they’re haunted by the spectre of voter suppression, uneasy about racism, red-baiting, and class resentments, and scarred by recent electoral debacles: in 2004, John Kerry narrowly lost the crucial state of Ohio, arguably because of voter suppression – a loss that exacerbated lingering outrage over the 2000 Supreme Court ruling that gave an electoral vote majority and the presidency to George W Bush instead of popular vote winner Al Gore.

Intensifying the anxieties and raising the stakes of the 2008 election is the ugliness of the campaign. Individual incidents, like the false accusation (hyped by a campaign operative) that a female McCain volunteer had been assaulted and mutilated by a tall, black male Obama supporter are disturbing; but we’d probably dismiss them as anomalies if not for the palpable fury and visceral hatred of Obama that surfaces at campaign rallies (and has been widely reported and video-taped). Cries of ‘terrorist’ and ‘kill him’ are profoundly unsettling to people who have worried about Obama’s safety since he announced his candidacy (he was the first candidate to receive secret-service protection) and to those of us who remember the assassinations of John and Robert Kennedy and Martin Luther King, as well as the maiming of George Wallace.

We’ve seen the consequences of free-floating rage, which severe economic stress as well as dramatic social change can provoke; we don’t slough off cries of ‘kill him’ or delude ourselves that secret-service protection is a bullet-proof guarantee. Of course, Palin and McCain are free to appeal to ignorance and fear, calling Obama a socialist because he supports a traditional, progressive income tax (which McCain is on record defending) or associating Obama with terrorism and anti-Americanism, exploiting his relatively exotic ethnic background, not to mention his middle name. All we can do is worry when they stoke the anger and resentment of their least informed supporters, and many of us do.

Even the usual characterisation of Obama and other Democrats as elitist is less benign in this climate, in the context of this campaign. Obama did lend credibility to the elitism charge during the primary with his boneheaded remarks about the bitterness of people denied prosperity, who ‘cling’ to religion and guns. But at least he described their alleged bitterness as a product of circumstance, not character. (And he did not begin life as a member of any elite; he worked his way into one.) If elitism implies a belief in the inherent superiority of some groups over others, then Palin, McCain and their allies are the true elitists, repeatedly heralding the superior, intrinsic virtues of small-town or ‘real America’, praising a cultural elite from which millions of fake American urbanites (never mind ‘unAmerican’ liberal Democrats) are automatically barred.

As Palin recently said, ‘We believe that the best of America is in these small towns that we get to visit, and in these wonderful little pockets of what I call the real America, being here with all of you hard-working very patriotic, um, very, um, pro-America areas of this great nation. This is where we find the kindness and the goodness and the courage of everyday Americans. Those who are running our factories and teaching our kids and growing our food and are fighting our wars for us. Those who are protecting us in uniform. Those who are protecting the virtues of freedom.’

After being roundly criticised for these remarks, Palin offered an apology, claiming she didn’t mean to imply that people outside small towns were any less patriotic or ‘good’, and leaving us to wonder what she did mean to imply. In any case, McCain soon offered a similar paean to small-town elites during a stop in Western Pennsylvania, which he praised as ‘the most patriotic, most God-loving, most patriotic part of America’. Of course, politicians almost always pander to the crowd before them, but McCain’s remarks echoed a clear campaign theme, summed up by North Carolina Republican congressman Robin Hayes who declared: ‘Liberals hate real Americans that work and accomplish and achieve and believe in God.’ When questioned about this remark, Hayes initially denied making it; when confronted with proof of it, he explained ‘it came out the wrong way’ and ‘was not what I intended’. Whatever. Then there was Minnesota congresswoman, Michele Bachmann, who suggested on a cable news show that the press investigate the anti-Americanism of her liberal colleagues.

We can take some comfort in efforts to retract these attacks after they’re publicised (and in the $1million or so contributed to Bachmann’s surging Democratic opponent in the wake of her remarks). But, as voters worry about a possible depression, as unemployment rises and the stock market continues to fall, decimating retirement funds, as fear of terrorism continues to percolate, we can’t comfortably dismiss the threat of demagoguery. Condemnations and investigations of Americans suspected of loving neither God nor country are not exactly unprecedented, as survivors of the McCarthy years who were imprisoned or blacklisted for their political views might attest.

I’m not anticipating the rise of another House UnAmerican Activities Committee or the persecution of liberals, progressives, atheists, anti-war protesters or other dissidents (although it’s worth noting that some protesters have been subject to illegal surveillance; in Maryland, for example, peace movement and anti-death penalty activists were listed as terrorists in a state police database). But I am not precluding the possibility of widespread repression either, especially if a new Supreme Court gives more license to an imperial, ‘unitary’ president.

Right-wing Republicans may begin advocating separation of powers if Obama is elected (although they will probably be contending with a Democratic Congress). Or maybe they’ll enter into the deep depression that awaits Obama supporters if McCain prevails, with Palin next in the line of succession. McCain, to his credit, is not terribly adept at demagoguery; but it fits the rabble-rousing Palin like a sexy designer suit. Combining ignorance of domestic and international affairs with an implacable sense of self-certainty (she doesn’t ‘blink’) and religious fervour that regards the Iraq War and the building of a natural gas pipeline in Alaska as part of God’s plan, she has declared that she cannot govern effectively if ‘the people of Alaska’s heart are not good with God’.

Never mind the exhortation to ‘get good with God’; ceremonial deism pervades American politics. What’s telling is Palin’s appeal to the people of Alaska’s heart – singular. Millions of disparate individuals are not a holistic unit, with one heart and mind, except in the vernacular of a malignant utopianism that envisions the unity and purity of a ‘people’ (in Alaska or the entire US) as an essential alternative to a demonised pluralism. What’s at stake in this election apart from the legal structures of American democracy are the diverse, disorderly and disputatious hearts of it.

Wendy Kaminer is a lawyer, writer and free speech activist. She is the author most recently of Free for All: Defending Liberty in America Today, published by Beacon Press. (Buy this book from Amazon(UK).) Her forthcoming book is Worst Instincts: Cowardice, Conformity, and the ACLU.