Pubdate: Sat, 1 Mar 2008
Source: New York Times (NY)
Page: 17, Section A
Copyright: 2008 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Jeffrey Rosen
Note: Jeffrey Rosen, a law professor at George Washington University, 
is the author of "The Supreme Court: The Personalities and Rivalries 
That Defined America."
Bookmark: http://www.mapinc.org/opinion.htm (Opinion)
Bookmark: http://www.mapinc.org/topic/crack+cocaine

A CARD-CARRYING CIVIL LIBERTARIAN

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.")

Whether Hillary Clinton's administration would, in fact, look like 
Bill Clinton's on civil liberties is hard to judge. In many areas, 
she has demonstrated an impressive commitment. She proposed a privacy 
bill of rights that would require consumers to "opt in" before their 
commercial data is shared and would allow them to sue companies for 
the misuse of data. She has called for the resurrection of a federal 
"privacy czar" who would balance the privacy costs and benefits of regulations.

She made an eloquent speech in the Senate opposing the suspension of 
habeas corpus. And she has emphasized the importance of Congressional 
oversight of executive power, promising as president that she would 
consider surrendering some of the authority that President Bush 
unilaterally seized. Clearly, she would be immeasurably better on 
civil liberties than George W. Bush.

But Mrs. Clinton's approach to the subject is that of a top-down 
progressive. Her speeches about privacy suggest that she has 
boundless faith in the power of experts, judges and ultimately 
herself to strike the correct balance between privacy and security.

Moreover, the core constituency that cares intensely about civil 
liberties is a distinct minority -- some polls estimate it as around 
20 percent of the electorate. 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.

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.
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MAP posted-by: Richard Lake