Obama vs. Clinton on Civil Liberties

I’ve frequently noted that the conventional wisdom is wrong in saying that there is little difference between Obama and Clinton on the issues. There are significant differences between them on foreign policy, social issues, and civil liberties which lead me to support Obama but make me unlikely to vote for Hillary Clinton should she win the Democratic nomination. Jeffrey Rosen looks at their differences on civil liberties issues in The New York Times:

IF Barack Obama wins in November, we could have not only our first president who is an African-American, but also our first president who is a civil libertarian. Throughout his career, Mr. Obama has been more consistent than Hillary Clinton on issues from the Patriot Act to bans on flag burning. At the same time, he has reached out to Republicans and independents to build support for his views. Mrs. Clinton, by contrast, has embraced some of the instrumental tacking of Bill Clinton, whose presidency disappointed liberal and conservative civil libertarians on issue after issue.

Mr. Obama made his name in the Illinois Legislature by championing historic civil liberties reforms, like the mandatory recording of all interrogations and confessions in capital cases. Although prosecutors, the police, the Democratic governor and even some death penalty advocates were initially opposed to the bill, Mr. Obama won them over. The reform passed unanimously, and it has been adopted by four other states and the District of Columbia.

In the Senate, Mr. Obama distinguished himself by making civil liberties one of his legislative priorities. He co-sponsored a bipartisan reform bill that would have cured the worst excesses of the Patriot Act by meaningfully tightening the standards for warrantless surveillance. Once again, he helped encourage a coalition of civil-libertarian liberals and libertarian conservatives. The effort failed when Hillary Clinton joined 13 other Democrats in supporting a Republican motion to cut off debate on amendments to the Patriot Act.

That wasn’t the first time Mrs. Clinton tacked to the center in a civil-liberties debate. In 2005, she co-sponsored a bill that would have made it a federal crime to intimidate someone by burning a flag, even though the Supreme Court had struck down similar laws in the past. (Mr. Obama supported a narrower bill that would have satisfied the Constitution.) And Mrs. Clinton opposed a moderate proposal by the United States Sentencing Commission that would have retroactively reduced the draconian penalties for possession of crack cocaine, a proposal supported by Mr. Obama, and by liberal as well as conservative judges.

The real concern about Hillary Clinton’s record on civil liberties is that her administration would look like that of her husband. Bill Clinton’s presidency had many virtues, but a devotion to civil liberties was not one of them. After the Oklahoma City bombing, the Clinton administration proposed many of the expansions of police power that would end up in the Patriot Act. (They were opposed at the time by the same coalition of civil-libertarian liberals and libertarian conservatives that Mr. Obama has supported.) The Clinton administration’s tough-on-crime policies also contributed to the rising prison population, and to the fact that the United States has a higher incarceration rate than any other country.

Hillary Clinton’s conduct during the Clinton impeachment does not inspire confidence in her respect for privacy. Kathleen Willey, one of the women who accused President Clinton of unwanted advances, charges in a new book that Mrs. Clinton participated in the smear campaigns against her. A federal judge found that the Clinton White House had committed a criminal violation of Ms. Willey’s privacy rights by releasing her private letters. (An appellate court later criticized the judge’s “sweeping pronouncements.”)

Rosen does note some favorable actions by Clinton, such as her opposition to the suspension of habeas corpus. Unfortunately Clinton’s record is quite mixed. Rosen finds problems as Clinton’s “approach to the subject is that of a top-down progressive” to Obama. He rightly fears that “A polarizing president, who played primarily to the Democratic base and refused to reach out to conservative libertarians, would have no hope of striking a sensible balance between privacy and security.” He has greater hopes for success from Obama:

Mr. Obama, by contrast, is not a knee-jerk believer in the old-fashioned liberal view that courts should unilaterally impose civil liberties protections on unwilling majorities. His formative experiences have involved arguing for civil liberties in the legislatures rather than courts, and winning over skeptics on both sides of the political spectrum, as he won over the police and prosecutors in Chicago.

As a former grass-roots activist, Mr. Obama understands the need to make the case for civil liberties in the political arena. At a time when America’s civil-libertarian tradition has been embattled at home and abroad, his candidacy offers a unique opportunity.

Rosen notes that “the core constituency that cares intensely about civil liberties is a distinct minority some polls estimate it as around 20 percent of the electorate.” While this might make me part of a minority, it is civil liberties issues, along with opposition to the war, which has caused me to generally vote Democratic the last several years. Clinton has a poor record on both the war and on civil liberties, leaving me little reason to vote Democratic should she win the nomination.

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  1. 1
    Dan in Indiana says:

    Wow. Thanks for the post. I share in your emphasis on civil libertarian issues. Thanks.

  2. 2
    David Drissel says:

    I agree completely with your analysis. There is no doubt that Sen. Obama is stronger on civil liberties issues than is H. Clinton. What is particularly disturbing is that Sen. Clinton does not seem to understand the basic tenets of our Bill of Rights. To attempt to recriminalize flag burning, even after years of Supreme Court precedents upholding the practice, is truly disturbing.

    In contrast, Sen. Obama has actually taught constitutional law at the University of Chicago and intimately understands the need for strong First Amendment protections. We cannot allow a tyranny of the majority to trample on our rights, as Sen. Clinton would apparently favor. Simply because a particular form of political expression is unpopular or deemed “unpatriotic” by some, does not mean that it should not warrant constitutional protection. After all, the flag stands for liberty – which includes the right to peacefully protest and register dissent against the government, even if flag burning occurs. Those who would ban flag burning are the ones who truly are destroying the very principles that the flag stands for.

    On the issue of reducing penalties for crack cocaine, Sen. Clinton has not only shown her disdain for civil liberties, but is also being racially insensitive once again. How can she defend such draconian criminal penalties for crack (compared to power cocaine), when such laws have had disproportionate impact on African Americans? As was noted, she and her husband have fueled the massive increase in the prison-industrial complex with their policies in nineties. As a result, one in every 100 Americans is now behind bars. The U.S. leads the world in incarcerations. This tragic state of affairs would continue to worsen under a President Hillary Clinton.

  3. 3
    Ron Chusid says:

    There is another major difference on drug law between the two which I’ve posted on in the past. Obama has supported needle exchange programs, while Clinton has opposed them.

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