Will Democrats Restore Our Liberties Stolen in the Bush Era?

Does the Democratic Party still stand for human rights and civil liberties?

Yes and no.

Most rank-and-file Democrats strongly support constitutional rights, from grizzled ACLU liberals to Iowa Caucus voters to MoveOn's web enthusiasts, and the issue regularly competes with Iraq as a top priority for party activists. Yet Democratic leaders are much more ambivalent. The Democratic Congress buckled in its largest civil liberties clash with the White House, passing legislation to expand warrantless spying in August. And while Democratic presidential contenders are better -- they all opposed the surveillance bill and the administration's unconstitutional Military Commissions Act -- few have used the full power of their office to advocate constitutional rights. As the Bush era of radical secrecy, unitary executive power and openly unconstitutional leadership draws to a close, the Democrats are still debating how to restore rights and liberties while waging a more effective battle against terrorists.

In the presidential field, Chris Dodd has outlined the most thorough civil liberties platform. The 26-year Senate veteran is the author of major legislation to restore habeas corpus and repeal the Military Commission Act. He also led the congressional battle against retroactive immunity for telephone companies that illegally assisted the N.S.A.'s domestic surveillance. Joe Biden has staked out a leadership role on civil liberties as well. He was the first presidential candidate to back Dodd's pledge to filibuster Bush's surveillance bill -- later Barack Obama and Hillary Clinton followed suit -- and he was the first Democrat to introduce legislation reversing the controversial July executive order authorizing "enhanced interrogation techniques." Biden's legislation, "The National Security with Justice Act," would also close U.S. government "black sites," require that all interrogations comply with the Army Field Manual and provide oversight to constrain the administration's use of "rendition" (the practice of outsourcing torture to other countries). Yet the bill does not have a single Senate co-sponsor -- an indication of how reticent Democratic leaders are in this area.

The remaining Democratic frontrunners do not prioritize civil liberties much on the campaign trail, though they do advocate constitutional rights in contrast to the Bush administration. Obama, Clinton and John Edwards each say that if elected, for example, they will restore habeas corpus, close Guantanamo and halt illegal domestic spying. Obama and Clinton have both cosponsored stand-alone legislation to restore habeas corpus. And unlike Clinton, Obama has signed on to Dodd's more comprehensive bill, the "Restoring the Constitution Act," which has 13 co-sponsors. Edwards, a former senator, has not specifically spoken out on the bill, though he has endorsed several of its proponents in several addresses challenging the entire doctrine of a "Global War on Terror." Clinton also categorically ruled out the use of torture during a presidential debate in September, withdrawing her previous position that torture could be justified in a ticking time-bomb scenario.

Yet across the country, Democratic voters support a constitutional rights agenda much more forcefully than their elected leaders. According to survey that Belden Russonello & Stewart conducted this September, 81 percent of Democrats oppose torture, 70 percent favor restoring of habeas corpus, and 69 percent want to close Guantanamo. Iowa's pivotal (and knowledgeable) Democratic electorate supports these priorities at even higher rates than the national averages, including 94 percent opposition to torture and 88 percent support for habeas corpus. Democrats would not alienate swing voters on this score, either. The national survey found Independents had similar views, including higher support for habeas corpus (80 percent) and opposition to torture (87 percent) than Democrats across the country.

Civil liberties advocates say these positions, among Democrats and independents alike, are animated both by frustration with Bush's failures and a desire for new leadership that wages a battle against terrorists the "American way." That is the philosophy behind a new liberal group, the American Freedom Campaign, calling on all the presidential aspirants to affirm American values in the Constitution by strongly backing a freedom "pledge." That includes a policy commitment to restore habeas corpus, secure rights of the accused, ban all torture and defend personal liberties. With backing from MoveOn.org, Human Rights Watch, Amnesty International and the Center for Constitutional Rights, among others, the group has already elicited letters of support from each of the leading Democratic presidential candidates.

Yet even that important list of priorities is not sufficient to restore the rule of law in the post-Bush era. Though members of Congress rarely admit it, and the public may not appreciate it, the most significant rejections of President Bush's counterterror policies have actually come from the courts -- not from Congress or elections. The conservative Supreme Court has twice rejected Bush's detention policies at Guantanamo in the landmark Rasul and Hamdan decisions. Lower federal courts have also rebuffed executive programs to detain a U.S. citizen without trial and spy on Americans without the required warrants. Yet Bush has repeatedly responded by maligning court oversight as a barrier to national security and attempting to circumvent the rulings. Congress has reinforced that approach, even after the Democrats took control this year, by passing legislation to validate surveillance rebuffed by the courts; granting immunity to potential war criminals and contractors in Iraq; and stripping habeas corpus in the Military Commissions Act, which responded to the Hamdan decision in 2006. (The State Department also secretly granted immunity to Blackwater bodyguards, as the Associated Press reported this week.)

These congressional acts are counterintuitive, under traditional models of American government, because Congress is complicit in the reduction of its own power. The founders envisioned each branch of government asserting itself by checking the others -- "ambition must be made to counteract ambition," as James Madison declared in the Federalist Papers. Under both Republican and Democratic control, however, Congress has let its power ebb -- and assisted executive encroachments on the judicial branch. Thus civil libertarians must move on two fronts, advocating policy priorities (like habeas corpus) and pressing politicians to address vital -- but vague -- notions of restoring the proper constitutional separation of powers.

The next president should work with Congress to strengthen the branch of government that makes the law work: the courts. Civil libertarians can press candidates to outline their specific policies to strengthen judicial oversight -- including potential misconduct in the next White House. The public is also entitled to know how a candidate would select judges with fidelity to the law -- not deference to the executive branch. Another sleeper judicial issue for the campaign agenda is the administration's expansion of the "state secrets privilege," often referred to as a "nuclear" doctrine in government circles. The Bush administration has shut down scores of important cases by radically expanding the state secrets privilege, a Cold War doctrine allowing the executive to completely preempt a case by asserting that state secrets are jeopardized. Thus cases die without judges ever reviewing the underlying claims, or descriptions of the alleged secrets. (Here conservatives have swapped "judicial activism" for judicial torpor.) The American Bar Association has criticized the administration's abuse of this doctrine, and the bipartisan Constitution Project is advocating major reforms to the privilege. The issue sounds obscure now, but if evangelical activists could popularize their fight over "strict constructionist judges," civil libertarians can show peace and human rights activists how this doctrine has prevented accountability for numerous allegations of torture, rendition, detention and spying -- fortifying a model of executive power that is remarkably unaccountable to the public.

There is a common theme in all of these measures. They affirm American values and enjoy wide support among Democratic and independent voters, but remain largely neglected by Democratic leaders.

It is an old fissure within the party. The 2000 Democratic Platform, for example, was notable for its prescient emphasis on how terrorism challenges an open society. The platform proposed to "disrupt terrorist networks" before they attack while protecting the "civil liberties of all Americans" and securing "the rights of the accused, even under the unusual circumstances of the investigation of threats to our national security." The document even singled out Osama Bin Laden as a key target for the United States, while the Republicans' 2000 platform does not mention him.

Yet even if the Democrats' 2000 platform reflected popular opinion within the party, it obviously did not drive party leaders after 9/11. Today, the question is whether the failures of the Bush administration have finally shown Democratic leaders what their constituents -- and many other Americans -- already believed. The United States can wage a battle against its enemies without sacrificing freedom, justice and democracy at home.