Why Aren’t Clinton and Obama Raising Constitutional Issues?

By Patricia Lee Sharpe

John Yoo, the Benedict Arnold of our constitutional system, is in the news again. His memos, those secret messages he so treacherously delivered to the Bush administration, are gradually coming to light. One of the latest to surface (so far as I know) held that the Fourth Amendment doesn’t apply to “domestic military operations” against terrorists. Pressed to the wall, the slippery new Attorney General conceded, very reluctantly, that the Fourth Amendment, which protects Americans against unreasonable search and seizure, is indeed still in effect “across the board.”

Democratic Senators are Trying

We have Democratic Senator Dianne Feinstein of California to thank for forcing that out of the Bush administration’s latest minion at the Justice Department. Thinking that a retired judge would have some sense of loyalty to the Constitution, the Democrats in the Senate, including Feinstein, gave Murkasy an easy time during his confirmation hearings. That, clearly, was a mistake. He is as unprincipled and devious as his predecessor. And we can be sure that, even as he spoke those words, he was holding to some mental reservation that will serve as his version of a presidential signing statement nullifying the public sense of his utterance.

Meanwhile, other Democratic Senators, Sheldon Whitehouse, of Rhode Island and Russ Feingold of Wisconsin, are still insisting on their right to obtain documents that have to do with domestic surveillance and terrorist interrogation practices. They also contend that modifications in executive orders on sensitive issues should be, at the very least, reported to the appropriate Congressional committees.

“It is a basic tenet of democracy that the people have a right to know the law,” insists Senator Feingold. How radical!

Reading stories like this, including one which informs us that lawyers can no longer speak on the phone with clients accused of terrorism for fear of government eavesdropping, I thought it might be a good idea to look into the prospect for a less imperious presidency under a Democratic successor. Oddly enough, neither Clinton nor Obama has initiated much of a conversation on Constitutional issues, and the media hasn’t forced them to make up for their oversight or reluctance during the twenty-some “debates” in which they have faced one another. Does that mean that each of them would continue on the Bush track? That was a very frightening thought. So I checked out the web sites for the Clinton and Obama campaigns.

The Ominous Silence

Both Clinton and Obama are lawyers. They fully understand the implications of the Yoo memos and the other advice produced by the Justice Department during the Bush administration. And yet, what I found when I scanned the "Issues" sections of each web site is that neither Obama nor Clinton have any position they wish to publicize on the following urgent Constitutional issues or deplorable human rights abuses:

Habeas corpus. Warrentless surveillance of all kinds. Military tribunals. The Geneva Conventions. Secret rendition. Torture. Legislation-nullifying signing statements. The balance of powers. Constitutional checks and balances. Guilt by association. Preventive detention. The right to competent legal representation. The right of the accused to know charges and confront witnesses. The constraints on the commander-in-chief. Executive privilege. Over-classification and secret government.

There are at least three possible reasons why we cannot learn what the candidates think about these critical matters. (1) They have contempt for the American public, imagining that we cannot understand these issues or do not care or will be too easily manipulated by the Republicans ready to impale them on flag pins. (2) The omission was an oversight, which is not likely considering the long list of issues which are dealt with on each web site. (3) They intend to follow the Bush lead.

The Veto-Proof Solution

I am relieved that Democrats in Congress and in the Senate are trying to rectify the damage that the Bush administration has done to democracy in the United States. But I am now forced to wonder if our representatives will have the support for Constitutional restoration that we so desperately need from a Democratic president.

All the more reason to have a veto proof Democratic majority in Congress by next January!

Comments

[Courtenay Barnett]

There are a number of extant disturbing issues, concerning media treatment as regards both the issues and the candidates :-

Constitutional issues avoided by the media

1. Habeas corpus suspension – “Gitmo” as an expression of suspension of rights.
2. Fourth Amendment - “ Terrorism” as a means of bending the criminal law to suppress and suspend domestic rights.
3. Abuse of Executive privilege – an omnibus pass to George Bush to have done all that he has done under the guise of state security.

Racial double standards

4. The Clintons’ pastor, William Procanick, is a convicted pedophile; McCain’s association with the kook, Pastor Hagee, warrants no public distancing by McCain; Pat Roberson’s calls for the assassination of Chavez does not by any measure of fairness cause the spotlight to be turned on the extreme preachers who support the Republican party; yet, the Republican party and Hillary ( a certain racial unification here on this point) are excluded from any press scrutiny for those they choose to embrace. Why do we have these racial double standards relative to Clinton and Mc Cain – but we do not find any equivalence in the media when it comes on to the treatment of the Obama/Wright issue. Is the media an unequal service provider, in these matters as it is with the avoidance of the serious issues of constitutional violations under the Bush administration?

Credible media standards

5. As the media is the issue here – has anyone ever reflected on the scream that was supposed to have blown it for Howard Dean. Assume that was so, then if so, what in goodness name is the media to do about a presidential candidate who opens his meeting with the song, “Bomb, bomb, bomb Iran”. It is not any media racial double standards on this point, but simply put – a want of both standards and credibility in the mainstream media - if issues like these are discussed and rigorously explored in the media. But, how could they – wouldn’t that then negate the points that the media does not have credibility; it does manipulate; it does project issues in an imbalanced way; and, it does sound the trumpet for skewed corporate interests.

Conclusion

6. Your concluding remark: “But I am now forced to wonder if our representatives will have the support for Constitutional restoration that we so desperately need from a Democratic president.” One may add “ …am now forced to wonder if our representatives will have a democratic presidential candidate endorsed by an informed public, challenged by a fair and active media, for the establishment of the standards by which the incumbent - post-election - will then be judged”.

7. There is manifest mainstream media irresponsibility here, when the media before our eyes blows out of proportion an issue to force a candidate to ‘ apologise’ ( in effect) for words that are not his – Obama/Wright - then blows away from public attention for any proportionate assessment, the very significant and important issues of the violations of the Constitution under the Bush administration – which the media, as you correctly point out – has failed to compel the nation and the Democratic candidates, by that omission, to address and seriously consider.

[LabDancer]

Ms Sharpe:

I am not clear on the nature of your complaint.

If it is that voters do not have any informaion on the positions of each of the three remaining presidential candidates on these legal issues which so easily engage words and concepts in the Constitution, that is not so. Charlie Savage of the Boston Globe, who won a Pulitzer for his series of reports with both news on and analysis of President Bush's use of signing statements, spear-headed a survey of candidates from both parties in the fall of 2007, which was reported in December here:

http://www.boston.com/news/nation/articles/2007/12/22/candidates_on_executive_power_a_full_spectrum/

While not all the candidates then still running cooperated with the survey, all three of those remaining did.

There is at least some superficial basis for comfort from the responses from all three. However there are significant differences for those interested in restoring the Rule of Law to its proper place in the American democratic republic:

[1] As to Senator McCain, acknowledging that he is not a lawyer, it appears that he has a sort of Norm, or "Nahmie", big beer drinker at the end of the bar in Cheers, take on the issues which we all know about because they've somehow been rendered graphic by the abuses of the Bush Administration.

Because these sort of big-lug decent-guy positions fit his public persona so well, I would not have expected to get where we already are with him, which is deeply concerned that its all an act on his part.

His public persona on torture for example comes from the identification the public has with him being a victim of it, so in the nature of both an eye-witness and an expert witness [which lawyers know is a dubious combination], plus the publicity he received for somehow taking President Bush to the mats on the torture law - except he really did nothing of the kind, and his current, and less publicized, comments, show he is a supporter of pretty much everything the CIA did to the various suspects in their custody except for waterboarding, and he's not actually been all that clear on that.

Bearing in mind that the Bush administration had Addington use Yoo and Gonzales et al to approve a range of "techniques" some of which would qualify as torture, some of which would so qualify if used repetitively or in combination with other "techniques", in reality then Sen McCain has no problem at all condoning the use of torture; its just that he fails to see it as such.

So that brings in to question his bona fides on all the questions in the survey. Moreover, his refusal to name who would be his legal advisors is a big hint that he would leave all that up to the back-room boys in the RNC.

[2] Senator Clinton of course does not get the same break, because she is a lawyer, albeit not a specialist or expert in the Constitution. But her responses don't really engage any expertise by her or anyone else, and in the end she like McCain offers platitudes and declines to name her advisors. Sure she's a Democrat, which gives some comfort to some [In the case of President Lyndon Johnson for example being a Democrat turned out not to provide any comfort in issues with personal privacy.], and we have some indications on what the law under her might look like, I suppose, from her husband's presidency. But I like many Democrats have learned to doubt her word on things. I would want to see far more in the way of depth and specifics on her to feel comfortable.

[3] Senator Obama has the biggest resume on this area, and not surprisingly delivered the most satisfying responses. He was about as specific as one could get without risking losing everyone but the constitutional law geeks, plus he did something which I think of as particularly disarming: Even though he was top of his class at Harvard; even though he taught Constitutional law for a decade at a top law school; even though his Constitutional law prof at Harvard has called him one of the top 3 students he ever taught there; even though he spent more than a decade providing legal advice to people & groups whose interests directly engaged specific passages in the Constitution; that is, even though he is pretty arguably among the most qualified experts on the US Constitution we have: STILL he actually named and fully identified the lawyers who he would look to for advice on the issues in the Boston Globe survey [which are pretty much the same issues as here].

I am with you that we should hear more on this in the campaign, but I don't think Democrats would be receptive to the idea that there is much difference in these issues between Senators Clinton & Obama, and its pretty clear that the nature of the states which have been in play between them since Super Duper Tuesday have not provided much scope on that anyway. Moreover, since Obama gained the upper hand in delegates, increasingly he has tended to let her carry the subjects of debate and counterpunch. Plus he's had some phony fires to put out.

The bottom line is that I expect it will play a much bigger role once the general election debate is really under way without the distraction of a simultaneous noise of a supposedly dramatic nomination battle.

But even then, I expect these issues, so vital to you and I and others, will take a back seat to Iraq and the economy, or the Iraqonomy. Plus, remember that great line from Moscow on the Hudson [which had so many great lines for Democrats in particular]? "America - big town".

Anyway, as should be clear, I'm in the tank for Obama on this area.

[Courtenay Barnett]

The real point is not that a journalist or a newspaper runs an important and/or challenging article. The wide picture of the focus of general mainstream media trends is what really governs public opinion.What does the media consistently focus upon? While on the point here is Charlie Savage's worthwhile contribution on Obama:-

Barack Obama's Q&A
Email|Print|Single Page| Text size – + By Charlie Savage
Globe Staff / December 20, 2007
1. Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?

more stories like thisThe Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.
Candidates' answers:
Joseph Biden |Hillary Clinton |Christopher Dodd |John Edwards |Rudy Giuliani |Mike Huckabee |John McCain |Barack Obama |Ron Paul |Bill Richardson|Mitt Romney|Fred Thompson
Read answers by question:
|Question 1 |Question 2 |Question 3 |Question 4 |Question 5 |Question 6 |Question 7 |Question 8 |Question 9 |Question 10 |Question 11 |Question 12
graphic Candidates judge scope of executive power
Richardson fights to hit home with N.H. voters
Romney defense of Bush proving to be key strategy
Notebook Report on Giuliani expenses disputed

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

3. Does the Constitution empower the president to disregard a congressional statute limiting the deployment of troops -- either by capping the number of troops that may be deployed to a particular country or by setting minimum home-stays between deployments? In other words, is that level of deployment management beyond the constitutional power of Congress to regulate?

No, the President does not have that power. To date, several Congresses have imposed limitations on the number of US troops deployed in a given situation. As President, I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.

4. Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?

Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

No. I reject the Bush Administration's claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

6. Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?

With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.

7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president's authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.

8. Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?

It is illegal and unwise for the President to disregard international human rights treaties that have been ratified by the United States Senate, including and especially the Geneva Conventions. The Commander-in-Chief power does not allow the President to defy those treaties.

9. Do you agree or disagree with the statement made by former Attorney General Gonzales in January 2007 that nothing in the Constitution confers an affirmative right to habeas corpus, separate from any statutory habeas rights Congress might grant or take away?

Disagree strongly.

10. Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?

First and foremost, I agree with the Supreme Court's several decisions rejecting the extreme arguments of the Bush Administration, most importantly in the Hamdi and Hamdan cases. I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments. In my view, torture is unconstitutional, and certain enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I reject the use of signing statements to make extreme and implausible claims of presidential authority.

Some further points:

The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.

Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.

The violation of international treaties that have been ratified by the Senate, specifically the Geneva Conventions, was illegal (as the Supreme Court held) and a bad idea.

The creation of military commissions, without congressional authorization, was unlawful (as the Supreme Court held) and a bad idea.

I believe the Administration’s use of executive authority to over-classify information is a bad idea. We need to restore the balance between the necessarily secret and the necessity of openness in our democracy – which is why I have called for a National Declassification Center.

11. Who are your campaign's advisers for legal issues?

Laurence Tribe, Professor of Law, Harvard University

Cass Sunstein, Professor of Law, University of Chicago

Jeh C. Johnson, former General Counsel of Department of the Air Force (1998-2001)

Gregory Craig, former Assistant to the President and Special Counsel (1998-1999), former Director of Policy Planning for U.S. Department of State (1997-1998)

12. Do you think it is important for all would-be presidents to answer questions like these before voters decide which one to entrust with the powers of the presidency? What would you say about any rival candidate who refuses to answer such questions?

Yes, these are essential questions that all the candidates should answer. Any President takes an oath to, “preserve, protect and defend the Constitution of the United States." The American people need to know where we stand on these issues before they entrust us with this responsibility – particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this Administration.

© Copyright 2008 Globe Newspaper Company.

[CKR]

I'm going to let this most recent comment stand, but our policy is not to allow long cut-and-pastes. Use a link and pull out the most relevant material, or just use a link.

Next one gets deleted.

[pls]

Both Clinton and Obama web sites are innocent of positions on these issues. That suggests that the all important issues of presidential powers, curtailed civil liberties and torture are NOT questions on which the candidates wish very strongly to engage. This may say more about the voters than the candidates, but no matter how you cut it, it's fraught with implications.