By Anthony Gregory
hat tip: Campaign for Liberty
The following is based on a talk delivered at the Free State Project’s Liberty Forum in Nashua, New Hampshire, Saturday, March 20, 2010.
In the United States, civil liberties are seen as the province of the left. The ACLU, the Bar Association, the Democratic Party, people who err in favor of procedural protections for criminals and even terrorists — this is what tends to come to mind to conservatives who condemn civil liberties as a leftist interest, and to liberals who celebrate it as a great anchor of their political philosophy.
But what happens when the left-liberals are in charge of the executive branch, its police, its justice department, prosecutors and military courts? Predictably, conservatives fear the government will be soft on foreign and domestic villains. Liberals hold out hope that due process will be restored.
Libertarians, too, will often adopt this general lens through which to see political reality. Just as many progressive writers discussed the coming of Obama as a new dawn for the Bill of Rights — or, at least, the amendments they openly favor — many libertarians hoped that the Bush era of warrantless wiretapping, indefinite detention, torture and police statism would recede with the electoral victory of the Democrats.
But here we see the problem. For if the left are the most institutionally important guardians of civil liberties, then the ascent to power of one of their own will often mean a quieting of dissent. Left-liberals become caught up with economic policy, become corrupted, or simply tire of finding more reasons for their own partisan figurehead to be criticized, and look the other way. Just as Republican administrations can often implement domestic interventions with a freer hand — look at Bush’s effortless Medicare expansion compared to how long it has taken for Obama to move on health care — Democrats can expect a less hostile climate in which to build up executive power to the detriment of civil liberty. And indeed, even if they have good intentions, they run against political pressure from the opposition accusing them of being soft with the police power. A left-liberal in office is the perfect storm for the destruction of our privacy and the rule of law. Just remember what Clinton did at Waco, or the erosion of liberty after the Oklahoma City Bombing, and the truth of this was confirmed long before January of last year when Obama took the throne.
Sometimes, during a tsunami of bad news, it’s nice to come up for a breath of encouraging air. The only way to do that this week that I know of is to read a beautiful 42-page order by a judge. Usually such things don’t strike me as beautiful, but this one says that leading torture lawyer John Yoo can be sued in court by one of his victims. It also says that his arguments for immunity are a load of crap, his arguments for the legality of torture are at least plausibly as fetid a pile of feces as they appear to the naked eye, and the treatment received by Jose Padilla is rather glaringly in conflict with our laws, basic standards of decency, and the wisdom of those who have gone before us and warned against sacrificing our rights on the temple of war.
So, while Congress and the Ministry of Truth, er … I mean the Department of Justice (DOJ), hold off on any attempts to hold anyone accountable for torture until the DOJ’s Office of Professional Responsibility releases a report on the conduct of Yoo, Jay Bybee, and Steven Bradbury — a report already delayed for six weeks of integrating edits made by the three men who are supposedly the subject of the report — a judge, by simply comparing Yoo’s publicly available confessions in the form of torture memos with actual legal standards, has produced the outline of an indictment that a special prosecutor could pick up and use to put John Yoo behind bars.