Salon Radio: ACLU's Caroline Frederickson

Why aren't constitutional issues receiving any campaign attention and what can be done about it? Plus: updates on the FISA lawsuits.

Published September 15, 2008 6:55PM (EDT)

My guest today is Caroline Frederickson, the ACLU's National Legislative Director. We discuss the virtually complete invisibility of civil liberties and constitutional issues in the presidential campaign, as well as the ACLU's new campaign to change that (which you can join here). Frederickson also provides the latest updates on the ACLU's lawsuit challenging the constitutionality of the recently enacted FISA Amendments Act of 2008.

The discussion is roughly 25 minutes. It can be heard by clicking PLAY on the recorder below, and a transcript is here.

It is common for people to assert, without citation to any polling data, that Americans don't care about civil liberties protections or that they sanction abridgments of core constitutional liberties if those abridgments can be remotely justified by appeals to greater security. In fact, ample actual polling data has long disproven that common belief, and as Jim White documents today, a poll released this week by the National Constitution Center provides compelling new data that these political values could resonate among large portions of the electorate if a political leader chose to take a strong stand in their defense.

It's certainly true, as Andrew Sullivan disturbingly documents today, that the American public now views matters such as torture the same way that the public in places such as Iran, Egypt and Russia views those issue -- as we have seen many times, that cluster of nations has become America's peer group in so many ways -- but that is due at least as much to the failure of any leadership on these issues as anything else. The ACLU's campaign is designed to inject these vital issues back into our national debates -- the key prerequisite to improving public opinion and, then, changing policy in these areas.

This interview can be heard by clicking PLAY on the player at the bottom of the page.

Glenn Greenwald: My guest today is Caroline Frederickson, who is the ACLU's director of the legislative office in Washington, and we're here to talk about several things relating to the ACLU including a new campaign that the ACLU is launching next week. Thanks very much for joining me today, Caroline.

Caroline Frederickson: Oh, it's a pleasure, Glenn.

GG: Good. It's a pleasure for me as well. And I wanted to begin by asking you about this new campaign, the purpose of which, at least as I understand it, is to try and encourage or persuade or compel presidential candidates and media figures who are covering the campaign, to pay more attention -- I guess we could fist say some attention -- to constitutional issues and rule of law and other things.

CF: That's absolutely right. And let me just say first off, the ACLU is a non-partisan organization when it comes to candidates, but we're very partisan when it comes to the Constitution. And the Constitution has been getting a bum rap, certainly for the past eight years, but it's an issue, thery're a set of issues that have really been slowly neglected by the candidates, by the media, except by you, of course, Glenn, who have done great work in this area. But there are some significant questions that have been raised, particularly by the administration of George Bush, about how we can enforce our constitutional rights.

So what we at the ACLU are doing is launching this campaign, the "I'm a Constitution voter" campaign, which basically says, we need to put constitutional issues on the table. We've all heard about Guantanamo and torture, we all know there was illegal spying - these are questions that should be raised with the candidates about how they're going to approach critical constitutional civil liberties issues, and we need to get the candidates not only to speak on it, but we need to get the voters to vote on it - to really hold the candidates feet to the fire on where they stand. What do we do about when we are engaged in interrogations of so-called enemy combatants? What's the standard that should apply? And we believe the candidates need to be much more forthright on how they will consider these issues going forward.

GG: Okay.

CF: The other thing, I would say, is I think one of the major issues that a lot of people have been concerned about, and certainly the ACLU has raised a good deal of concern about, is what is the role of the president and the executive branch, and President Bush has certainly had a unique and pernicious theory about what kind of powers are available to the president and whether or not he has to abide by the law that the rest of us have to abide by, and he's decided the answer to that is no. That also needs to be on the table, and our candidates need to address, Mr. Obama and Mr. McCain, need to say whether they think the president's actually controlled by rule of law, or whether he has the freedom to disregard what Congress passes.

GG: Right. Now, talk a little bit about the mechanics of the campaign, what is this campaign designed to do, how can people who are supportive of it participate or help to advance these aims?

CF: Well, there's a whole range of things that people can do, and first off I would suggest that people go to our website, which is At the website they are going to find a pledge that people can sign which basically encapsulates this basic view as the constitution voter, which starts with:

I believe that noone, including the president, is above the law. I oppose all forms of torture, and I support both closing Guantanamo Bay prison, and ending indefinite detention. I oppose warrantless spying.

And it goes down through a number of other issues. And we want people to sign up and take that pledge. That pledge is going to be distributed to the candidates so that they can see how many Americans actually are concerned about the significant damage that has been done to our Constitution, and the real need to restore and improve the protections that have been in existence, certainly prior to the Bush administration.

GG: Right. Now, one of the things that I find so striking about the virtually complete absence of these issues from the campaign thus far is that, there are all kinds of groups who have all kinds of interests and issues, that they want to generate more attention for. I mean, that's pretty common. And a lot of those groups are ones that have interest in issues that are pretty obscure or idiosyncratic or buried in the avalanche of information. And that stands in stark contrast to these issues that you're talking about, things like torture and Guantanamo and the rule of law and surveillance and wiretapping.

These are really issues that have generated among the most prominent and intense political controversies of the last eight years, so it isn't as though you're trying to get attention or force the candidates to discuss issues that are very esoteric or obscure; these really have been at the center of our political debates over the last eight years, and despite that, things like torture and Guantanamo and rendition and all that have gotten a fair amount of attention. They haven't been covered very well, but they certainly have made headlines and have entered the public consciousness.

Has it surprised you that neither candidate has been asked about it or voluntarily has raised those issues, almost at all, and what do you think accounts for that?

CF: Well, absolutely. And I think the real unfortunate thing is that the media seems to care about what kind of metaphor Obama uses, whether or not Sarah Palin was a beauty queen, all these kinds of things that really don't get to the core of what these people will do if they're elected to run our country. While it may be important to consider some issues of background and people's capabilities for the job, ultimately, the most important thing that the American people needs to know is what are they going to do if they're elected. And those questions have really not come up. Certainly not from the media; I think it's, from time to time candidates do talk about their positions, but there's been no probing of these key issues. This is not top of the list for Obama or McCain to talk about - they're not talking about torture; they're not talking about spying; they're not talking about executive power. Will they follow the Dick Cheney viewpoint about whether or not the executive branch is actually a more important branch of government than the other two? Is that their vision? These are critical questions for how our government will be structured going forward. And I think it's just shameful, really, that we've had so little examination of those particular issues.

GG: Right. You know, there's been some very isolated and fleeting references to some of these issues at the conventions, and even among the major party, the four candidates who are leading the ticket. I think Barack Obama recently actually gave a speech in response to what Sarah Palin said -- Sarah Palin at the convention had mocked Obama for being concerned about whether or not al Qaeda terrorists have their rights read to them. That's how she characterized the debate over habeas corpus and the abolition of that 900 year old basic right.

And then Barack Obama in response said, don't mock the constitution, it's done well for 200 years.  They sort of exchanged some sloganeering. But there's obviously been no substantive discussion of any kind or attempt to persuade the electorate in any way on either side by any of the major candidates. Do you actually believe that these issues are of significant concern, or can resonate among voters if the candidates were to try and make that effort, and if so what is your basis for believing that?

CF: Well, absolutely. These are very important issues, and they really go to the core of why George Bush is so unpopular. We cannot just put that aside when we think about this campaign. One of the reasons we've gotten to this point where the Republicans are thrilled to have a hurricane so they don't have to have the current president actually appear at the convention - think about that. They were thrilled that George Bush had an excuse not to show up. Why is that - it's because President Bush has so damaged people's image of the presidency.  He has so overreached - late-night television, constant jokes about, we're all being wiretapped, and torture, and Guantanamo - I mean, these are things that have come into the common parlance, have become jokes about our government. And that may not be the issue that candidates are talking about; that is certainly the backdrop of why the Republican Party, at least up 'til now, has seemed to have had such an uphill climb, because they are working with a president who is perhaps the least popular president in American history.

And so, the reason for that decline in his standing, from 9/11 to now, is that he took a time of national unity and used it for partisan gain and to engage in a whole variety of illegal activities, let alone taking us into a war which I think many people would argue is probably not based on real facts. So, I think this is the issue that candidates need to confront, which is: what is the role of the president, and how do you redeem it after President Bush has so tarnished that constitutional position?

GG: One of the great mysteries to me has been that the way in which Democrats and Republicans are typically described politically, is that Democrats are at a disadvantage when it comes to national security because they have a patriotism problem. They are perceived, or they are vulnerable to the charges that they're not quite as patriotic as Republicans are. And if you ask most Americans - and there are polls that suggest this - what is the source of pride that you have in the United States, they won't name the fact that we have most powerful military, or that we start more wars than anybody else, or anything like that; they'll typically cite what they perceive as being our freedoms, or our Constitution. It really is ingrained into the American consciousness that the reason why our country is worth caring about, or taking pride in, or being patriotic about, is precisely because of these constitutional values, and yet it seems as though, no politician has ever really identified the opportunity to establish patriotism and especially Democrats who seem vulnerable to that, by defending those very principles.

Ultimately, that was how Obama began to approach that issue, when he mentioned it in passing a few days, which is, well, what made our country great for the last 200 years are these constitutional values that Sarah Palin is mocking. But they seem really to transcend any of these partisan disputes that Democrats and Republicans seem afraid of engaging. How does the ACLU address these issues in terms of maintaining your non-partisan posture while at the same time being able to defend these core principles? How do you see that as being consistent?

CF: Well, I think it's incredibly consistent, because again, the Constitution is not limited to Republicans or Democrats. It's a document that has served to found our great country. And we are extremely proud of being here to help protect the values that are enshrined in that document. And so in terms of patriotism and how the different parties have cast that - again, I think it's about time that somebody called the Republicans to account, if they are the ones who are doing it, or the Democrats. But there has to be someone who's willing to stand up and shame the other side, and say, this patriotism goes deeper than whether or not you wear a flag pin on your lapel, or whether you support the war in Iraq. Patriotism is about whether you love your country and whether you love the values that it stands for; and as you said very well, I think, Americans consider the greatest value of our country to be the freedom that we represent in the world, and the liberties that we cherish that people fought and died for. And it's about time that there were people who were willing to express their anger, their indignation, and shame the other side for daring to laugh at what our founding fathers gave their lives for.

GG: Now, one of the most difficult facts to come to terms with over the past, say, two years, since the Democrats took control of Congress, is that the assault on the Constitution, though having its genesis in the White House, has really been a more or less bipartisan effort. It's been spearheaded by the White House, but aided to a great degree by the Democratic-led Congress, and of course the recent FISA bill is but the latest and one of the most egregious examples of that. Why do you think that is? Why do you think that neither party has been willing or able to figure out how to make these issues politically beneficial, or is it that neither party really has displayed an interest in doing so, that they're happy with these erosions?

CF: Well, Glenn, I think you've raised a very important point. I think the issue in terms of how these issues have played on Capitol Hill is one of sort of the Pavlovian response that both Republicans and Democrats have when you say the word 'terrorism' is that the Republicans start to bark and Democrats roll over. And it's this sort of ingrained belief, it's the received wisdom, if you will, that Republicans are strong on national security, they're strong on terrorism, and Democrats are weak.

Therefore, Republicans always set the agenda, and Democrats always follow. And what they seem to forget over and over and over is that they never get credit for following. And what I think they really don't understand is that the reason that people think of the Republicans as tough, the macho party so to speak, is because they're actually standing up for what they believe in, as opposed to the Democrats who are perceived as wavering, weak, and indecisive. And I think that's the real issue here. And I think what Democrats need to learn, a lesson that the Constitution is not partisan. And what they need to do is be proud of what their beliefs are, instead of run away from them. I mean there are plenty of Republicans that side with us on these critical issues, at least from time to time, and I don't want to sound as if I think the Democrats are generally better, because, as you said, they have not exactly been portraits of strength here.

But what I think is important is that people need to go back to first principles: first you figure out what you're for, and then you figure out how to talk about it or sell it to the public, but you don't think about what the message is or what the polling is, and then figure out what you're for. And that seems to have unfortunately been driving politics on both sides for far too long.

GG: Yeah, I think you're absolutely right. People may not follow very carefully the detailed debates over every discrete issue, but people can sense intuitively when politicians are afraid of their own principles or I think more accurately don't have any. And as you say, and as I've screamed at the top of my lungs for as long as I have been able, the perception of weakness on the part of the Democrats is due far more to the fact they're perceived as either having no principles or of being afraid of standing up for them, than due to any specific doctrinal approach to national security or civil liberties.

Speaking of the FISA bill, the ACLU, as certainly my readers know, has commenced litigation both in the southern district of New York, as well as in the FISA court in order to contest the constitutionality of the surveillance provisions of that FISA bill that was recently enacted, the FISA Amendments Act of 2008. I think the last time I wrote about it or talked about it, I interviewed Jameel Jaffer, on the day that it was filed or shortly thereafter, and so the last update that I've written about and that we have is basically the commencement of the lawsuits themselves. Can you talk about where things have gone since then, and...

CF: Yeah, for sure. There hasn't been a lot of progress - the lawsuit in front of the FISA court has hit a bit of a road bump. I think the FISA court is trying to kick it out and I'm not sure whether or not a decision has been made.

GG: You mean, kicked it out, so that the federal court in the southern district of New York will be the ones to decide the issues?

CF: Yes. I think they're not willing to consider the ACLU participating before the FISA court. But we are pursuing the case in the district court challenging the FISA Amendments Act, and that is going forward and we are filing a brief today. So, that's all on track, and as I've said, I'm not sure what the next step is with regards to, with the very unique effort to try and get a non-government party in front of the FISA court, which is not their usual way of doing business, and I think the argument that we would make is that we have a major constitutional issue at stake, as they go forward through the FISA court to applying the FISA Amendments Act, you need to have somebody who can be there to argue on behalf of the Constitution and not just have these ex parte proceedings with only the government in the room. So, as I said, I'm not quite clear on what the next step is, whether they've determined a further process for whether there's going to be an appeal or not. But, we are continuing to have the straight ahead constitutional challenge in the federal courts.

GG: Right. Well, we will certainly follow that, and keep updating it as well as the ACLU campaign. By the way, when is that campaign launching?

CF: We are launching tomorrow. And we're going to take...

GG: Tomorrow would be, since we're recording this Thursday, tomorrow would be essentially Friday.

CF: Tomorrow would be Friday the 12th of September, and we are really trying to ramp up for Constitution Day, which is next week, the 17th of September, which is a focal point for our work. But this is only the beginning - we'll carry through the campaign. The website also has more detail about the specific policies we're proposing for whoever the next president may be, to undertake on the first day, the first hundred days, and we'll be augmenting it with a whole host of information about ACLU priorities at that site.

GG: Excellent. Well, I don't know what the prospect is for having these issues receive attention prominently in the campaign, but certainly this campaign I think is one of the best hope for at least forcing some attention to be paid to it and at least conveying that there are people, there are lots of people who want attention paid.

CF: All I can say is, I hope that some of the interlocutors at the debates go beyond asking questions like, now, why do you wear, or not wear a flag pin on your lapel, or when you said lipstick on a pig, did you mean talking about Sarah Palin or were you just using a commonly used metaphor.

So, I would ask that the questions they ask are more like, do you believe that Vice President Cheney is right in his view of the unitary executive? As president will you follow that plan? That's the kind of question we need - something serious, something direct about these major constitutional issues that have arisen in the past eight years.

GG: Yeah, I think the best we can hope for is that the questions that matter get asked in addition to some of the frivolous ones that you've identified rather than instead of - we should keep our goals realistic. But, certainly, having them ask those questions and being compelled to answer would be a huge step forward, and I guess that I think this campaign can only help, and likely will help increase the chances that that'll happen. So I really the appreciate the campaign, and I appreciate your taking the time to talk to me about it.

CF: Absolutely a pleasure, Glenn, any time.

GG: Thanks, Caroline, bye bye.

[Transcript courtesy of Thames Valley Transcribe]

Music: Kevin MacLeod

By Glenn Greenwald

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