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“From Unlikely To Long-Shot”: Rand Paul Just Sacrificed His Presidential Campaign For His Libertarian Principles

Sen. Rand Paul (R-Ky.) had what will probably be the defining moment of his presidential campaign on Sunday night. It could conceivably help him, but at a high political cost. It could also end his presidential hopes.

The junior senator from Kentucky infuriated his Republican colleagues by blocking a vote on the USA Freedom Act, a bill that would curtail a controversial National Security Agency bulk phone-data collection program and reauthorize three other surveillance programs that expired at midnight. The NSA had stopped collecting telephone metadata Sunday afternoon, when it became clear no deal would be finalized in time. It won’t be able to resume until the Senate acts, the House approves any changes, and President Obama signs the bill.

In Rand Paul’s telling, and that of the red-shirted “Stand With Rand” supporters who filled the Senate gallery on Sunday evening, Paul stuck a shiv in the government surveillance state, at least for a few days. “The Patriot Act will expire — it will expire tonight,” Paul said on his way out of the Senate chamber Sunday night. “The point I wanted to make is that we can still catch terrorists using the Constitution.”

Paul had some other help, if inadvertent. Senate Republicans, notably Majority Leader Mitch McConnell (Ky.), had wanted to extend the USA Patriot Act as is. They fell short. Then, after a week’s recess, when it became clear the votes just weren’t there for the Patriot Act renewal, McConnell reluctantly agreed to put the “flawed” USA Freedom Act up for a last-minute vote on Sunday, and the Senate agreed, 77 to 17. The bill had passed the House on May 13, 338-88, and Obama supports it.

Senate GOP hawks say the Freedom Act puts too many constraints on the NSA; Paul and some other civil libertarians say it still goes too far. But his usual civil-liberty allies in the Senate signaled their comfort with the House bill, leaving Rand Paul the lone holdout. In the Senate, that’s often enough to delay a bill, and Paul did so on Sunday.

Whether or not it was his prime motivation, as Sens. Dianne Feinstein (D-Calif.) and John McCain (R-Ariz.) suggest, Paul will earn a lot of money for his presidential campaign. But his chances of becoming the 2016 Republican nominee just went from unlikely to long-shot.

Shutting down American espionage and surveillance capabilities, even for a few days, is too off-brand for the GOP — especially at the moment.

Paul is “a niche candidate of a shrinking niche, because events are not playing out the way he anticipated two years ago when he began running for president,” George Will said on Fox News Sunday. “The world looks much more dangerous than it did,” and “literally cashing in” on his “conscientiousness as a libertarian” really “muddies the waters” of his intentions.

In a crowded Republican presidential field, Rand Paul is betting he can monopolize the libertarian caucus. It’s a gamble. Forcing expiration of the NSA provisions for a couple of days was a small victory on its own. But “his larger political victory was that he took ownership of Patriot Act opposition,” said David Weigel at Bloomberg Politics, “angering Republican colleagues whom he is happy to anger.”

Weigel names McCain and Sen. Lindsey Graham (R-S.C.), but Paul also angered McConnell, who has endorsed him for president, and Senate Intelligence Committee Chairman Richard Burr (R-N.C.), who vowed on Sunday that “there won’t be any negotiations with Rand Paul from this point forward.” Paul didn’t attend the GOP caucus meeting before Sunday’s session, and Republicans walked out on him en masse when he started speaking.

The big question for Paul is whether there are enough civil libertarians in the Republican Party, and if so, whether they will vote in the primary. Plenty voted for his father, former Rep. Ron Paul (R-Texas), but it wasn’t enough.

“People here in town think I’m making a huge mistake,” Rand Paul said Sunday evening. “Some of them I think secretly want there to be an attack on the United States so they can blame it on me.”

In other words, Rand Paul sounds like a lot of Democrats after the Sept. 11, 2001, terrorist attacks. That wasn’t a good place to be, politically.

Brit Hume at Fox News hammered the same point on Sunday. Paul “seems confused about which party he’s running in,” he said. “There’s a segment of the Republican electorate which shares his somewhat paranoid views of things, and he’ll have their support, but that’s not a nominating set.”

Rand Paul seems to know the risks, and he seems content to go down swinging. And if he does stake his political future on curtailing government spying and lose, unlike other GOP presidential contenders, he probably shouldn’t expect a soft landing at Fox News.

 

By: Peter Weber, The Week, June 1, 2015

June 2, 2015 Posted by | Civil Liberties, Patriot Act, Rand Paul | , , , , , , , , | 3 Comments

“Judging The Supreme Court”: A Disturbing Picture, The Court Is Guilty Of Failing To Adequately Enforce The Constitution

After 227 years of history, how should we judge the United States Supreme Court? All of my years of studying, teaching, and practicing Constitutional law have convinced me that the Supreme Court has rarely lived up to lofty expectations and far more often has upheld discrimination and even egregious violations of basic liberties.

My disappointment in the Court is historical and contemporary. Its preeminent task is to enforce the Constitution in the face of majorities that would violate it. The Court is thus especially important in protecting minorities and in safeguarding rights in times of crisis when passions cause society to lose sight of its long-term values.

For the first 78 years of American history until the ratification of the 13th Amendment in 1865, the Court enforced the institution of slavery. For 58 years, from 1896 until 1954, the Court embraced the noxious doctrine of separate but equal and approved Jim Crow laws that segregated every aspect of Southern life. Nor are egregious mistakes by the Supreme Court on race a thing of the past. The Roberts Court has furthered racial inequality by striking down efforts of school boards to desegregate schools and by declaring unconstitutional crucial provisions of the landmark Voting Rights Act of 1965.

The Court also has continually failed to stand up to majoritarian pressures in times of crisis. During World War I, individuals were imprisoned for speech that criticized the draft and the war without the slightest evidence that the expression had any adverse effect on military recruitment or the war effort. During World War II, 110,000 Japanese-Americans were uprooted from their lifelong homes and placed in what President Franklin Roosevelt referred to as “concentration camps.”

During the McCarthy era, people were imprisoned simply for teaching works by Marx and Engels, and Lenin. In all of these instances, the Court failed to enforce the Constitution. Most recently, the Roberts Court held that individuals could be criminally punished for advising foreign organizations, designated by the United States government as terrorist organizations, as to how to use the United Nations for peaceful resolution of their disputes or how to receive humanitarian assistance.

For almost 40 years, from the 1890s until 1937, the Court declared unconstitutional more than 200 federal, state, and local laws that were designed to protect workers and consumers. The Court even declared unconstitutional the first federal law designed to prevent child labor by prohibiting the shipment in interstate commerce of goods made by child labor. Minimum-wage and maximum-hour laws were frequently invalidated.

Even the areas of the Supreme Court’s triumphs, like Brown v. Board of Education and Gideon v. Wainwright, accomplished less than it might seem. American public schools remain racially separate and terribly unequal. Criminal defendants in so many parts of the country, including in death-penalty cases, have grossly inadequate lawyers.

The Court’s decisions from the last few years — preventing employment discrimination suits and class actions against large corporations, keeping those injured by misconduct of generic drug makers from having any recovery, denying remedies to those unjustly convicted and detained — illustrate what has historically been true: The Court is far more likely to rule in favor of corporations than workers or consumers; it is far more likely to uphold abuses of government power than to stop them.

What should we do about it?

Some scholars urge the abandonment of judicial review, but I reject that conclusion. The limits of the Constitution are meaningful only if there are courts to enforce them. For those I have represented over my career — prisoners, criminal defendants, homeless individuals, a Guantánamo detainee — it is the courts or nothing.

But I believe that there are many reforms that can make the Court better and, taken together, make it less likely that it will so badly fail in the future. I propose a host of changes, including instituting merit selection of court justices, creating a more meaningful confirmation process, establishing term limits for court justices, changing the Court’s communications (that is, televising its proceedings), and applying ethics rules to the court justices.

The Supreme Court’s decisions affect each of us, often in the most important and intimate aspects of our lives. I think that we need to focus on the Court’s long-term and historical performance. If we do, it is a disturbing picture and there is only one possible verdict: The Court is guilty of failing to adequately enforce the Constitution.

But it can and must get better in the years and decades ahead.

 

By: Ewin Chemerinsky; The National Memo, January 5, 2014; Originally Posted at The Washington Spectator

 

January 6, 2015 Posted by | Civil Liberties, Constitution, U. S. Supreme Court | , , , , , , , | Leave a comment

“Flame Throwers And Fire Fighters”: Those Fanning The Flames And Those Trying To Tamp Them Down

It’s obvious that the big story of the day is the murder of two NYC police officers yesterday. I’m always hesitant to comment on a story like this as its unfolding. Its better to wait for all the information, process it, and see what we can draw from it.

But as people are weighing in, there are those that are fanning the flames and those that are trying to tamp them down. For example, in the category of flame throwers.

Rudy Giuliani:

“We’ve had four months of propaganda starting with the president that everybody should hate the police,” Giuliani said during an appearance on Fox News on Sunday. “The protests are being embraced, the protests are being encouraged. The protests, even the ones that don’t lead to violence, a lot of them lead to violence, all of them lead to a conclusion. The police are bad, the police are racist. That is completely wrong.”

George Pataki:

Sickened by these barbaric acts, which sadly are a predictable outcome of divisive anti-cop rhetoric of #ericholder & #mayordeblasio.

NYPD Union Chief Patrick Lynch:

“There’s blood on many hands tonight. Those that incited violence on the streets under the guise of protest that tried to tear down what NYPD officers did every day. We tried to warn it must not go on, it cannot be tolerated,” Lynch said, according to CBS New York. “That blood on the hands starts at City Hall in the office of the mayor.”

And here is what a few of the fire fighters had to say.

President Obama:

I unconditionally condemn today’s murder of two police officers in New York City. Two brave men won’t be going home to their loved ones tonight, and for that, there is no justification. The officers who serve and protect our communities risk their own safety for ours every single day—and they deserve our respect and gratitude every single day. Tonight, I ask people to reject violence and words that harm, and turn to words that heal—prayer, patient dialogue, and sympathy for the friends and family of the fallen.

Attorney General Eric Holder:

I condemn this afternoon’s senseless shooting of two New York City police officers in the strongest possible terms.

This was an unspeakable act of barbarism, and I was deeply saddened to hear of the loss of these two brave officers in the line of duty.

On behalf of all those who serve in the United States Department of Justice, I want to express my heartfelt condolences to the officers’ loved ones and colleagues. I will make available all of the resources of the Department to aid the NYPD in investigating this tragedy.

This cowardly attack underscores the dangers that are routinely faced by those who protect and serve their fellow citizens. As a nation we must not forget this as we discuss the events of the recent past. These courageous men and women routinely incur tremendous personal risks, and place their lives on the line each and every day, in order to preserve public safety. We are forever in their debt.

Our nation must always honor the valor — and the sacrifices — of all law enforcement officers with a steadfast commitment to keeping them safe. This means forging closer bonds between officers and the communities they serve, so that public safety is not a cause that is served by a courageous few, but a promise that’s fulfilled by police officials and citizens working side by side.

U.S. Attorney for the Eastern District of New York (and AG nominee) Loretta Lynch:

I was shocked and deeply saddened to hear of this afternoon’s brutal and senseless attack on two NYPD Officers, and I join Attorney General Holder in expressing my deepest condolences to the families of these fallen heroes…

Today’s assailant struck at the heart of our city — the dedicated officers who pledge their lives to safeguard us all. Today, two have fallen, in a stark reminder of the challenges and risks that our law enforcement officers face every day, both in New York City and throughout our nation.

Let us take this time to grieve with their families, and join the NYPD and all New Yorkers in honoring them for their sacrifice.

Frankly, some of the rhetoric of the flame throwers scares me. I’m sure hoping the fire fighters prevail.

 

By: Nancy LeTourneau, Political Animal, The Washington Monthly, December 21, 2014

December 22, 2014 Posted by | Civil Liberties, NYPD, Police Brutality | , , , , , , | Leave a comment

“Dissent And Violence”: Where Terrorists And Assassins Don’t Hide

At the end of last week, I wrote about a report showing how law enforcement authorities reacted to Occupy protests as if they were the advance guard for an al Qaeda invasion of America, on the apparent assumption that unlike non-violent right-wing dissent, non-violent left-wing dissent is likely a prelude to violence and thus must be met with surveillance, infiltration, and ultimately force. On Tuesday, the Supreme Court issued a decision on a case involving the Secret Service that seems to grow from a similar assumption about the connection between dissent and violence.

The case was about an incident in 2004 when President George W. Bush stopped at an outdoor restaurant in Oregon. A crowd quickly formed, with some people cheering Bush and some jeering him. The Secret Service forced both groups away from the location, but let the pro-Bush citizens stay closer than the anti-Bush citizens; the plaintiffs charged that this was impermissible viewpoint discrimination. The Court ruled 9-0 that the Secret Service acted reasonably to protect the president. Having read the decision, I don’t necessarily disagree with their reasoning—a lot of it turned on things like lines of sight to where the president was sitting from different corners in the area. But I’d be shocked if the agents involved weren’t particularly on their guard when the anti-Bush protesters showed up.

What we ought to question is the assumption that there’s any connection at all between the content of a non-violent protest and the potential for premeditated violence, particularly of the really dangerous kind, like terrorist attacks and attempts to assassinate the president. If you have two groups of people yelling at the president, and one group is saying “You’re great!” while the other group says “You suck!”, is there any higher probability that a threat to the president’s life will come from the second group than the first? The answer is, of course not. If someone wanted to assassinate the president, they would have no reason to seek out a bunch of protesters opposing that president to use as a cover. They’d want to get close enough to fire a shot, and it wouldn’t matter what the people among whom they hid would be saying.

That’s true despite whatever intuitive sense one might have that people who are opposed to the president might want to assassinate him. There’s a belief not just that anti-government violence exists on the same spectrum as peaceful protest, but that at any given moment, such violence is a potential outgrowth of such protest. And more: that people planning violence will incorporate peaceful protest into their plans.

That assumption leads to things like the Department of Defense spying on Quaker anti-war protesters during the Iraq war. Think about how nuts that is. The anti-terrorism officials whom we charge with our safety actually seemed to believe that al Qaeda would send a cell to America with plans to launch a major attack, and instruct them: “The week before zero hour, make sure you go to an anti-war rally. Make a sign that says ‘Bush Is the Real Terrorist.’ That will lay the groundwork for the explosion.”

Again, this case about the Secret Service was probably rightly decided, but the belief that terrorism, bombings, assassinations, and/or general violent mayhem are the potential result of every left-wing protest is absolutely common among law enforcement authorities at every level of government. It isn’t just factually wrong, it’s actually dangerous—to the people who end up having their rights violated, and to the country’s safety.

 

By: Paul Waldman, Contributing Editor, The American Prospect, May 29, 2014

June 1, 2014 Posted by | Civil Liberties, Public Safety | , , , , , | Leave a comment

“In The Name Of Freedom”: How To Spot A Paranoid Libertarian

In a recent essay in the New Republic, Princeton University historian Sean Wilentz contends that Edward Snowden, Glenn Greenwald and Julian Assange reflect a political impulse he calls “paranoid libertarianism.” Wilentz claims that far from being “truth-telling comrades intent on protecting the state and the Constitution from authoritarian malefactors,” they “despise the modern liberal state, and they want to wound it.”

Wilentz gives credit to Richard Hofstadter for the term “paranoid libertarianism,” but he is being generous. Although Hofstadter wrote an influential essay called “The Paranoid Style in American Politics,” he didn’t call special attention to its libertarian manifestation. Wilentz has performed an important public service in doing exactly that.

Most of Wilentz’s essay focuses on Snowden, Greenwald and Assange, and he offers a lot of details in an effort to support his conclusions about each of them. But let’s put the particular individuals to one side. Although Wilentz doesn’t say much about paranoid libertarianism as such, the general category is worth some investigation.

It can be found on the political right, in familiar objections to gun control, progressive taxation, environmental protection and health care reform. It can also be found on the left, in familiar objections to religious displays at public institutions and to efforts to reduce the risk of terrorism. Whether on the right or the left, paranoid libertarianism (which should of course be distinguished from libertarianism as such) is marked by five defining characteristics.

The first is a wildly exaggerated sense of risks — a belief that if government is engaging in certain action (such as surveillance or gun control), it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself. In practice, of course, the risk might be real. But paranoid libertarians are convinced of its reality whether or not they have good reason for their conviction.

The second characteristic is a presumption of bad faith on the part of government officials — a belief that their motivations must be distrusted. If, for example, officials at a state university sponsor a Christian prayer at a graduation ceremony, the problem is that they don’t believe in religious liberty at all (and thus seek to eliminate it). If officials are seeking to impose new restrictions on those who seek to purchase guns, the “real” reason is that they seek to ban gun ownership (and thus to disarm the citizenry).

The third characteristic is a sense of past, present or future victimization. Paranoid libertarians tend to believe that as individuals or as members of specified groups, they are being targeted by the government, or will be targeted imminently, or will be targeted as soon as officials have the opportunity to target them. Any evidence of victimization, however speculative or remote, is taken as vindication, and is sometimes even welcome. (Of course, some people, such as Snowden, are being targeted, because they appear to have committed crimes.)

The fourth characteristic is an indifference to tradeoffs — a belief that liberty, as paranoid libertarians understand it, is the overriding if not the only value, and that it is unreasonable and weak to see relevant considerations on both sides. Wilentz emphasizes what he regards as the national- security benefits of some forms of surveillance; paranoid libertarians tend to see such arguments as a sham. Similarly, paranoid libertarians tend to dismiss the benefits of other measures that they despise, including gun control and environmental regulation.

The fifth and final characteristic is passionate enthusiasm for slippery-slope arguments. The fear is that if government is allowed to take an apparently modest step today, it will take far less modest steps tomorrow, and on the next day, freedom itself will be in terrible trouble. Modest and apparently reasonable steps must be resisted as if they were the incarnation of tyranny itself.

In some times and places, the threats are real, and paranoid libertarians turn out to be right. As Joseph Heller wrote in Catch-22, “Just because you’re paranoid doesn’t mean they aren’t after you.”

Societies can benefit a lot from paranoid libertarians. Even if their apocalyptic warnings are wildly overstated, they might draw attention to genuine risks, or at least improve public discussion. But as a general rule, paranoia isn’t a good foundation for public policy, even if it operates in freedom’s name.

 

By: Cass Sunstein, The National Memo, January 30, 2014

January 31, 2014 Posted by | Civil Liberties, Government | , , , , , , , | Leave a comment

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