The intense and escalating political dispute in Britain over civil liberties is interesting in its own right, but it also vividly illustrates how craven and barren our own political system -- and the U.S. Democratic Party -- have become. The sacrifices now being made by British politicians of all parties in opposition to expanded government detention and surveillance powers is, with a few noble exceptions, exactly what our political elite in the Bush era have been -- and still are -- too afraid or too craven to undertake. As the Democratic Party prepares this week to endorse the Bush administration's illegal spying program and immunize telecoms which deliberately broke our surveillance laws for years, these contrasts become even more acute.
As I wrote about a couple of days ago, Tory MP David Davis is so passionately opposed to expanded detention powers and to the increasingly invasive British surveillance state generally that he has resigned his seat in Parliament in order to run again on a platform of safeguarding core civil liberties. Although Davis' own Conservative party leadership is infuriated by his resignation (because it risks the loss of that seat for the Tories), a key member of the Labour Party who also opposes increased detention powers is now defying his own party leadership in order to support Davis' re-election bid, an extraordinary step for a Labour MP to take, given that Labour Prime Minister Gordon Brown is the prime force demanding more government power. From The Guardian today:
Gordon Brown faced a fresh challenge to his authority last night after a leading Labour rebel promised to campaign for David Davis in the renegade Tory's forthcoming by-election.
Bob Marshall-Andrews yesterday defied the Prime Minister to sack him, adding that he hoped other Labour MPs would join the former shadow home secretary's one-man crusade for civil liberties.
"They can't muzzle the whole of the party, and it seems to me foolish in the extreme in the present climate to start describing civil liberties as a stunt," he told The Observer. "I have had emails asking, 'Why does it take a Tory to say this'?"
Under party rules, Labour MPs risk expulsion for campaigning for opposition parties. However, the maverick MP for Medway said that, since Labour appeared unlikely to put up a candidate against Davis, he considered himself free to speak so that 'the voice of a substantial part of the Labour party may be heard'.
Even more strikingly, Nick Clegg, the leader of the Liberal Democrats, has announced that his party will not even contest Davis' re-election, preferring instead to support the Tory MP's defense of civil liberties even though it means sacrificing an opportunity to have his party take over Davis' seat. From today's BBC:
Defending his decision not to stand a Lib Dem candidate against Mr Davis -- whose Haltemprice and Howden constituency was 7th on the list of target seats for Lib Dems' -- Mr Clegg said it was "a one-off" in exceptional circumstances. Mr Clegg said Mr Davis had told him the night before he announced his resignation about his intentions.
"I thought about it overnight, spoke to some people in the party, and we decided that from time to time it's not a bad thing to say look, there are certain issues which go beyond party politics."
He said while he disagreed with Mr Davis on many issues, he was known to feel "extremely strongly" about the issue of pre-charge detention and ID cards -- and without him the Conservatives may not have opposed those policies so strongly.
Davis' resignation has prompted all sorts of angry reaction from much of Britain's political establishment. The Conservative former defence minister Nicholas Soames told The Sunday Times: "It is a disaster for David personally. Words cannot express how foolish he has been." Prime Minister Gordon Brown, who supports greater process-less detention and other surveillance powers, called Davis' resignation a "stunt that has become a farce." As the Sunday Times put it, among the establishment there is "still puzzlement over why Davis had abandoned the chance of becoming home secretary in a future Cameron government." The political establishment is simply confounded that anyone would take a principled stand, and they have resorted, of course, to impugning his motives ("This is an ego trip and a sure sign that he still thinks he can become leader," said an anonymous Tory opponent).
* * * * *
That reaction is quite redolent of the the way the U.S. political establishment in both parties reacted when one of the very few courageous leaders in our entire political system, Sen. Russ Feingold, announced in March, 2006 that he would seek to have George Bush formally censured for breaking the law in spying on Americans without warrants -- despite the fact that Feingold represents a not-very-blue-state . Then-Senate Majority Leader Bill Frist used exactly the same term to attack Feingold as Prime Minister Brown is using to attack Davis' resignation -- "This is a political stunt, a political stunt that is addressed at attacking the president of the United States of America when we're at war," said Frist -- and most of the Democratic Party establishment ran away from Feingold as fast as their scared little legs could carry them. As AP reported:
Democrats distanced themselves Monday from Wisconsin Sen. Russell Feingold's effort to censure President Bush over domestic spying, maneuvering to prevent a vote that could alienate swing voters. . . .Throughout the day, Feingold's fellow Democrats said they understood his frustration but they held back overt support for the resolution. . . .
Asked at a news conference whether he would vote for the censure resolution, Senate Minority Leader Harry Reid of Nevada declined to endorse it and said he hadn't read it.
Sen. Joe Lieberman, D-Conn., said he had not read it either and wasn't inclined simply to scold the president.
"I'd prefer to see us solve the problem," Lieberman told reporters.
Across the Capitol, reaction was similar. Feingold's censure resolution drew empathy but no outright support from Democratic Leader Nancy Pelosi.
Pelosi "understands Sen. Feingold's frustration that the facts about the NSA domestic surveillance program have not been disclosed appropriately to Congress," her office said in a statement.
Senate Democrats were so afraid to go anywhere near Feingold's censure resolution that a New York Times article back then was headlined "Democrats Beat Quick Retreat on Call to Censure President" and began:
Senate Democrats on Monday blocked an immediate vote on a call by one of their own to censure President Bush for his eavesdropping program. . . Democrats, while distancing themselves from Mr. Feingold's assertion that the president "plainly broke the law" in approving surveillance without warrants, said his proposal merited more consideration than a hasty vote. . . . Democrats' hesitancy was a sign they remained reluctant to challenge Mr. Bush on some national security questions even as he was struggling in public opinion polls and set back on the transfer of some American port operations to an Arab company.
The bipartisan political and media establishment snidely insisted that Feingold was only doing this in order to promote his presidential ambitions -- an accusation proven to be false when Feingold, after announcing he wasn't running for President, continued to defend these issues with equal vigor.
When the history of the post 9/11-era in America is written, it will record that our country was ruled by an administration as radical as it was contemptuous of our laws and basic liberties, but was also aided and abetted every step of the way by a putative "opposition party" too craven and/or supportive even to attempt to impede any of it, let alone succeed in doing so. The very few times when certain of its members tried to take principled stances of the type Britain is now witnessing -- such as Feingold's vigorous opposition to Bush's illegal spying program, the Military Commissions Act, and excesses of the Patriot Act -- the Democratic Party leadership itself intervened to quash them and ensure they failed.
The lawlessness, excesses and civil liberties abuses of the last seven years began as secret Republican initiatives but are ending up as fully bipartisan policies, with the Republican and Democratic Party establishments sharing roughly equal responsibility for all of it. It may be unpleasant to have to accept that but it is nonetheless true.
* * * * *
The Democratic Party's embrace of the most radical and lawless aspects of the Bush administration will, by most accounts, be complete this week. The putative "compromise" that Congressional Democrats have agreed to with regard to spying powers and telecom amnesty is no such thing. The White House has signed off on the "compromise" precisely because it gives the President everything he and Dick Cheney have been demanding, simply dressed up in the most transparent wrapping to enable Democratic House leaders to lie to their supporters by claiming that they won important concessions.
Although, as I indicated yesterday, public reports about the bill's telecom immunity provisions were unclear, I've now been able to confirm definitively that the "compromise" that Democrats have agreed to does contain guaranteed immunity for the telecoms. The bill provides that the federal courts are required to dismiss the suits and immunize the telecoms as long as conditions are met that everyone already knows will be fulfilled. Put another way, the bill simply provides that the federal courts must dismiss all lawsuits against telecoms for their illegal spying as long as telecoms can demonstrate "A, B, and C" -- where "A, B and C" are already known in advance to be true and easily proven. The Democrat-supported bill is nothing more than a pre-ordained, mandated script provided to the courts to compel them to dismiss the telecom lawsuits.
Worse still, the conditions for dismissal in the Democrats' "compromise" bill shows how corrupt and lawless they are. Courts are required to immunize telecoms as long as telecoms merely demonstrate that the illegal spying they enabled was requested by the President and was represented to them by the Executive branch to be lawful. Courts will be required to dismiss the lawsuits without any consideration whatsoever of whether these telecom-defendants actually broke the law.
Put another way, Congressional Democrats -- not the Federalist Society, but Congressional Democrats -- are embracing the proposition that the President has the power to instruct private citizens to break the law. As the ACLU puts it:
This will set an incredibly dangerous precedent.
Why have privacy laws if the president can write you a note to disobey them? When the government asks companies to break the law in the future, they will have precedent that Congress will cover their tracks.
Democrats are about to institutionalize a proposition that has been rejected since the Nuremberg Trials -- namely, that individuals (or, more accurately, lobbyist-protected corporations) are free to break the law as long as they can claim afterwards that they were told by the Leader to do so. That's the principle which the Democratic Party -- following their standard pattern of having enough of their members join a virtually unanimous GOP while the Democratic leadership enables it all -- is about to write into our laws.
The excuse Congressional Democrats are using for this behavior -- that passing a FISA/telecom bill is necessary to avoid political harm -- is as false as it is cowardly. As I noted the other day, there are all sorts of easy ways to avoid political controversy if that goal were really what was driving them, including simply extending the existing PAA orders by 6-9 months so that they don't expire in August.
But the broader and more important point is the one illustrated by the bold and principled acts being undertaken by British politicians in several parties there, the same principle illustrated by numerous acts of Russ Feingold over the past seven years: defending basic liberties, the core principles of our political system, and the rule of law is of such overriding importance that any worthwhile politician, by definition, will do so even if it entails some political cost. As British members of Parliament resign their seats and defend members of other parties in defense of their liberties, our own Democratic Party this week will -- yet again -- endorse and legalize the most extremist and illegal aspects of the Bush agenda in pursuit of the craven, illusory and increasingly irrelevant goal of protecting its own political interests.
* * * * *
Here is the statement of Tory MP David Davis -- which he was barred from reading in Parliament -- announcing his resignation from the House of Commons in order to run for re-election exclusively on the basis of his opposition to the Government's detention authorities, the erosion of the rule of law, and the increasingly sprawling surveillance state:
UPDATE: The Daily Mail conducted a poll in Davis' largely conservative district and found "massive public support for his shock move to force a by-election over the Government's decision to detain terror suspects for up to 42 days without charge":
The article also reported that other politicians from the British Left are now breaking with their party to support Davis, and includes this poignant fact: "Rachel North, 37, who survived the 7/7 atrocity in London in 2005, threw her support behind Mr Davis, calling Labour's refusal to field a candidate 'disgraceful'." Even in the face of scare-mongering over Terrorism, people can be made to understand the imperative of safeguarding basic liberties. It just takes political leaders with the resolve and ability to make the case. Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.