Law in Contemporary Society

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President Barack Obama took office after famously promising hope and change, and with the support of an energized and passionate constituency. But in addition to these high hopes, many of his supporters are worried: predominantly about the economy, but also about human rights policies and social issues. I will analyze and evaluate how the administration has been addressing the public's concerns (particularly concerns of enthusiastic Obama voters) on these issues.

Human Rights

Many Americans saw the 2008 election as a step towards ending Bush-era torture and detention policies. Human Rights Watch greeted Obama's inauguration by announcing that it expected him to close Guantanamo Bay and end the CIA detention program, as well as releasing a checklist of recommendations. Obama checked two items off the list by ordering Guantanamo Bay closed and CIA secret prisons shut down. The order mandated review of whether the Guantanamo prisoners should be prosecuted, transferred or released. However, many administrative and diplomatic wrinkles have emerged in the implementation of this review. It will take more time before the order's efficacy can be evaluated. It is unclear whether the U.S. will allow any freed ex-detainees to remain here, as HRW would like them to do and as European allies would expect if Europe is to accept some detainees who cannot go home. And even the ones that are not released must be imprisoned after being prosecuted and convicted—but where? Which district would accept a terrorist, of whom the government and media have stoked our fear for eight years?

These issues have not been getting much press. But they must, if Obama is to implement any substantive human rights policies for the Guantanamo detainees. If the U.S. does not accept some freed detainees, it will have little credibility in asking Europe to do so. To free the detainees, we probably have to accept some of them here. Yet if we do accept detainees, as either free residents or convicted prisoners, it could be a political gold mine for the administration's enemies. Politicians making hay from Obama allowing terrorists into a prison in their district—or, worse still, free ex-prisoners into anywhere in the country—could not only prevent the administration from implementing human rights policies, but could also discredit its other plans, including economic ones. Obama needs to take an aggressive rather than a reactive role in raising national awareness about this if he wants to actually close Guantanamo. For instance, his spokespeople could talk about how a terrorist would not be a real threat from within an American prison. They could also share information about prisoners that will be released, to demonstrate why those prisoners are innocent: this would be embarrassing for the government but helpful in selling the prisoners' presence on American soil. If Obama waits until his opponents defines this conversation, he will be hampered in any effort to achieve actual justice.

Logistical and diplomatic problems are not the only issues. The Department of Justice under Obama has continued to use and even extend Bush-era legal arguments to protect its right to detain anyone without challenge. It uses Bush arguments about state secrecy to interfere with lawsuits concerning extraordinary renditions and illegal spying programs. And it has invented a new sovereign immunity doctrine that goes farther than the Bush administration in barring lawsuits against the federal government under privacy statutes. It has also argued that detainees in Afghanistan cannot challenge their detention, and is appealing a federal district court's rejection of this argument. These actions provoke anger and confusion amongst those who looked to Obama for changes in human rights policy. People who pay attention to these matters will not be fooled by mere rhetorical shifts (see comments to this post). Obama would have to take real action, including dropping at least some Bush-era legal doctrines, to satisfy them.

However, it is unclear whether or not he has any real political need to satisfy them. This depends on the level of enthusiasm he needs from his base to get re-elected in 2012 and get another Democratic congress in 2010, which in turn depends on the mood of those outside his base.

Social Issues

Obama's progress on social issues is clearer. His administration reversed the global gag rule, moved to rescind limits on access to contraception, funded family planning, and has generally lived up to its promise to support abortion rights. On homosexuality, Obama is against gay marriage but otherwise pro-gay rights, though perhaps not moving as fast as he could on some issues. One major insult to his base was symbolic: selecting sexist, homophobic preacher Rick Warren to speak at his inauguration. However, so long as such overtures to fundamentalists remain purely symbolic, Obama's supporters will likely approve of his social policies on the whole: the joy over his substantive changes dwarfed anger at this symbolic betrayal.

The Economy

This is a potentially strong area for Obama. Public support for strong government action is high, and Obama has promised such action. Yet most also dislike being made to bail out the rich and the likelihood of Obama's following through on his bold promises is unclear: Paul Krugman writes extensively on how Obama is recycling the Bush-Paulson plan for toxic assets and is still prey to the mindset that caused the collapse. His actions so far are not bold or well-explained to the public, and it is unclear if they will help the economy. If Obama waits to act boldly until his moderate steps have proved insufficient, public anger and disaffection may prevent him from doing so. He needs to make it clear that he understands the radical nature of our current situation, the fact that it is a departure from the old economic models, and that he is willing to change course. Bank nationalization would be just one way to do this. Congress can make it difficult for him to do anything drastic; however, the public mood is tolerant of drastic solutions. Obama should be able to sell something braver than his current plan.

* I agree that my use of the Leff concept feels forced and artificial. I noticed that as I was finishing up the first draft, but had no clear idea of what to do about it. I took your suggestion of switching perspectives in my revision, but I think I might have fallen into a different trap of biting off a bigger topic than I could chew.

  • I don't think the problem was that you bit off more than you could chew. I think the problem is that you didn't change categories when you changed viewpoints. Explaining in 1,000 words the overall strategy of the Administration is eminently possible, once you have seen it their way. But that's not what you've done.

  • You left in place the categories--human rights, "social issues" (which means the social control of sexuality), and "the economy"--that come from outside the Administration. They didn't plan to be the "recovery from the Bush bust" bunch, and they are playing the financial and economic crisis by ear, holding Rahm Emanuel's view that the crisis should not be put to waste, and should further their priorities. They don't care at all about human rights and social issues, except as stuff politics is about for other people. They have priorities and are trying to be merciless about them. You just don't name what they are.

  • The whole of this White House's behavior is organized around three national priorities: health care, energy and the environment. They believe that's the package that this society needs to move on, and they are solely concerned with empirically measurable progress in the areas of national priority. Everything else is politics, and should be played as the game requires, including trimming as necessary to get reelected. The foreign and economic policy teams have their hands full, and Obama is in no doubt whatever that they work for him. What happens to the economy will determine his chances of reelection, and he knows that. But his view is that this fact frees him to attend to the national priorities: he cannot manage this economy any more than any normal President can manage a normal economy, so he can leave Geithner and Bernanke to do the job of tending the fractures in finance capitalism, while he deals with what in his view the society he is governing really needs.

  • So you can explain the consequences of those obvious facts in 1,000 words: I stated them in slightly more than 160. But the facts would have to be obvious. What you needed was to take a hard look at how Obama really is governing, paying as little attention as possible to the static from everybody who wishes he were governing some other way. The static is signal when you're trying to understand the "politics," that is, the maneuvering from day to day amidst a clutter of yammering. But if you are trying to understand either the man himself or the strategy he is shaping, the static is just noise.

  • Well, I was trying to understand the "politics"--the way Obama dealt with the concerns of his most enthusiastic supporters, his "base." My change of perspective wasn't a change to evaluating Obama from Obama's point of view (maybe it should have been), but rather to evaluating how Obama has handled the priorities of his ardent campaigners.


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r7 - 08 Jan 2010 - 21:35:18 - IanSullivan
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