Surely, when it comes to civil liberties, the national security state, privacy and the rule of law, Obama would be different than the man he claimed to be preventing from a third term (through the political incarnation of Mr. Bush in the body of Sen. John McCain, of course). These werent Mr. Bushs best subjects. Under George W. Bush, an American citizen, Jose Padilla, was arrested without charge and denied his legal rights. There were those thorny issues of secret prisons, rendition and torture. And the Bush Administration began a mass surveillance program of American citizens through warrantless wiretapping.
But while the Bush Administration was colluding with telecommunications companies, such as AT&T, to eavesdrop on American citizens without any evidence of wrongdoing and devoid of any judicial check, Senator Obama provided necessary cover, voting in favor of retroactive immunity to those same telecom corporations and to permit such warrantless surveillance.
Oh, sure, during the campaign Obama attacked the Bush folks for invoking the legal tool known as the state secrets privilege more than any other previous administration to get cases thrown out of civil court. But now as president, the Obama Department of Justice makes those same arguments. In fact, in Jewel v. NSA, the Electronic Frontier Foundation is suing, on behalf of citizens to force the government to obey wiretapping and privacy laws. The Obama Administration has sought to prevent a court from looking into the complaint, insisting that state secrets will be revealed and that the government enjoys sovereign immunity from such lawsuits.
Last month, a federal judge in California threw out the case, writing that a citizen may not gain standing by claiming a right to have government follow the law. The judge advised that a political complaint — say, all citizens being spied on or ripped off by their so-called representatives — should be dealt with in the political process, not a judicial one.
The judge may have something of a point. Only, with the two major-party presidential candidates agreed on allowing the executive branch and telecom companies to break the law and eavesdrop on citizens, what political option is there?
Do we miss Mr. Bush yet? No, not at all. To paraphrase the title of The Huntingtons great rock song, How Can I Miss You If Your Policies Wont Go Away?
But there is one thing we do, indeed, miss: Real choice in politics.