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An Emerging Progressive Consensus on Obama’s Executive Power and Secrecy Abuses April 14, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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by Glenn Greenwald

“with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

In the last week alone, the Obama DOJ (a) attempted to shield Bush’s illegal spying programs from judicial review by (yet again) invoking the very “state secrets” argument that Democrats spent years condemning and by inventing a brand new “sovereign immunity” claim that not even the Bush administration espoused, and (b) argued that individuals abducted outside of Afghanistan by the U.S. and then “rendered” to and imprisoned in Bagram have no rights of any kind — not even to have a hearing to contest the accusations against them — even if they are not Afghans and were captured far away from any “battlefield.”  These were merely the latest — and among the most disturbing — in a string of episodes in which the Obama administration has explicitly claimed to possess the very presidential powers that Bush critics spent years condemning as radical, lawless and authoritarian.

It is becoming increasingly difficult for honest Obama supporters to dismiss away or even minimize these criticisms and, especially, to malign the motives of critics.  After all, the Obama DOJ’s embrace of many (though by no means all) of the most radical and extremist Bush/Cheney positions — and the contradictions between Obama’s campaign claims and his actions as President — are now so glaring and severe that the harshest denunciations of Obama’s actions are coming from those who, during the Bush years, were held up by liberals and by Obama supporters as the most trustworthy and praiseworthy authorities on these matters.  

The Electronic Frontier Foundation (EFF) — which, to the cheers of liberals everywhere, was one of the nation’s most stalwart defenders against the Bush assault on core civil liberties — declared last week:  “In Warrantless Wiretapping Case, Obama DOJ’s New Arguments Are Worse Than Bush’s.”  On Tuesday night, Keith Olbermann began his show by announcing:  

President Obama‘s Justice Department now is not just defending Bush officials from lawsuits surrounding National Security Agency domestic spying, but seeking to expand the government’s authority by making it immune from any legal challenge regarding wiretapping — ever.

Olbermann went on to add that “the Obama administration is just flat-out dead wrong about this” and then contrasted Obama’s campaign statements on transparency with his conduct as President and concluded:  “That was then, this is now.”  Law Professor Jonathan Turley — who, as a regular on Olbermann’s show during the Bush years, was one of the single most-cited and praised sources by the netroots on matters of executive authority — said that Bush officials should wave a “Mission Accomplished” banner because they “have Barack Obama adopting the same extremist arguments and, in fact, exceeding the extremist arguments made by President Bush.”

Meanwhile, Josh Marshall’s TalkingPointsMemo surveyed a panel of experts last week — including one from Center for American Progress, headed by Obama transition chief John Podesta — to ask and answer these questions about Obama’s argument in the illegal surveillance cases:

Does it represent a continuation of the Bushies’ obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?

In a word, yes.

Sen. Russ Feingold — probably the single most praised liberal politician of the last eight years — declared himself “troubled” by the Obama administration’s conduct on secrecy and illegal surveillance and said he would seek to enact legislation to limit Obama’s powers as soon as possible.  Nancy Pelosi vowed Congressional action to limit the Obama DOJ’s position, proclaiming:  “we can never have a repetition of what was done under the Bush administration or a continuation of that.”  

When asked about investigations of Bush crimes, Pelosi also said “we have a little bit of difference of opinion between the White House and the Congress” because the White House “wants to go forward” (Beltway code for allowing Bush crimes to go uninvestigated and unpunished) whereas Congressional Democrats “believe that we have to take a look at what happened[, since] there may be criminal activity.”  And early Obama booster Andrew Sullivan warned: “with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

The Obama DOJ’s conduct with regard to detainee rights at Bagram is provoking even harsher criticism among the favorite sources of progressives.  The New York Times Editorial Board — a leading establishment voice opposing Bush radicalism — today condemned what it called “The Next Guantanamo” and lambasted Obama for advancing “extravagant claims of executive power and perpetuat[ing] the detention policies of the Bush administration.”  Charlie Savage, who won a Pulitzer Prize at The Boston Globe for exposing Bush’s use of signing statements to break the law, in February described the Obama DOJ’s position as “embracing a key argument of former President Bush’s legal team” and as “a blow to human rights lawyers who have challenged the Bush administration’s policy of indefinitely detaining ‘enemy combatants’ without trials.”  

Last night, Digby lamented that “it’s clear that the Holder DOJ is going to keep at least some of the legal pillars of the Bush GWOT regime in place” and that “it’s profoundly disappointing that the administration is actually seizing more executive power in the case of the states’ secrets argument and perpetuating a lawless prison regime outside our borders.”  The American Prospect‘s Adam Serwer complained this morning that “what the Obama administration is essentially arguing is that it has the authority to detain terror suspects indefinitely without trial and without charges” and that Obama’s position “stands in stark contrast to statements Obama made during the campaign.”

International law professor Kevin Jon Heller of Opinio Juris said that “the Obama administration’s stance on Bagram is deplorable” and that Obama was trying to “create a legal black hole” in Afghanistan identical to what Obama vehemently condemned at Guantanamo.  The ACLU’s Jonathan Hafetz warned that the Obama position was creating “the new Guantanamo” and, if they prevail, “the Obama administration will continue to be free to create a prison outside the law.”  Liberal law professor Darren Hutchinson said of Obama’s Bagram position:  “This is the same argument that the Bush administration made” and, because of it, “Bagram could become the functional equivalent of Guantanamo Bay.”  And on Thursday, former DOJ official Bruce Fein — one of the most eloquent (and widely-cited-by-liberals) authorities on the Bush assault on the Constitution — extensively detailed what he called “an emerging pattern of mightily expansive claims of executive authority by the new administration” as part and parcel of “President Barack Obama’s claim to czarlike powers in a perpetual global war against international terrorism.”

Perhaps most significantly, Digby last night documented that Marty Lederman — a hero to the netroots when he used his blog and authority as a former OLC official to mercilessly critique the Bush approach to executive power and is now Obama’s number 3 OLC official — emphatically condemned (last year) the Bush policy of denying rights to Bagram detainees:  exactly the policy which the Obama DOJ is now defending.  Digby wrote (emphasis added):

I continue to wonder where Marty Lederman is in all this since he went to the Justice department. There is nobody who was more critical of these same policies during the Bush years and for whom I have more respect. But I wonder if he is using his thorough analyses of the Bush policies to end them?

In the wake of the Boumadiene decision [Lederman] wrote:

As I noted below, the two most important questions the Court did not answer are:

(i) Would habeas rights extend to alien detainees held in foreign locations other than GTMO (such as Bagram)?

and

(ii) What is the substantive standard for who may be indefinitely detained?

The Court was not, however, completely silent on these questions; it provided hints about how they might be resolved. . . .

So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than GTMO? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?

Short answer: No. . . .

Most importantly, the Court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the Court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one: “The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain.”  The political branches will not be permitted “to govern without legal constraint” or to “have the power to switch the Constitution on or off at will” . . . .

During the Bush years Lederman’s position couldn’t have been clearer that detainees such as those who applied for habeas corpus at Bagram clearly were, should be subject to the writ. Read his posts in this fascinating exchange if you doubt me. He even suggested that the Bagram prisoners, who he admits have been held in the absolute worst of conditions, should be sent to Guantanamo where at least they’d have some rights. It’s very difficult to believe that he would endorse this appeal.

Though Lederman acknowledged practical difficulties that might prevent full habeas hearings for Bagram detainees, he clearly stated that the crux of the Boumediene ruling applies to Bagram as it applies to Guantanamo — the exact opposite of the claim the Obama DOJ is now pressing.

Even for the hardest-core Obama loyalists, it’s rather difficult to attribute these increasingly harsh condemnations of Obama’s civil liberties, secrecy and executive power abuses to bad motives or ignorance when they’re coming from the likes of Russ Feingold, TalkingPointsMemo, the Center for American Progress, Nancy Pelosi, EFF, the ACLU, The New York Times Editorial Board, Keith Olbermann, Jonathan Turley, The American Prospect, Bruce Fein, Digby, along with some of the most enthusiastic Obama supporters and a bevvy of liberal law professors and international law experts — those who were most venerated by progressives during the Bush era on questions of the Constitution and executive power. 

 * * * * *

That the Obama DOJ has repeatedly embraced the very legal theories responsible for much of the intense progressive rage towards the Bush/Cheney regime is now beyond dispute.  The question of motive — of why Obama is doing this — is far less clear.  Motives in general are notoriously difficult to discern.  It’s often hard to know one’s own motives, let alone those of others, and one can only speculate about the reasons for Obama’s actions.

There is, as Pelosi said this week, clearly a strong aversion — one might say “desperation” — on the part of the Obama White House to avoid anything that could increase the pressure to commence investigations and prosecutions of Bush crimes.  As Slate‘s Dahlia Lithwick succinctly put it:  “by keeping the worst of the Bush administration’s secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers.” 

Preserving the President’s general ability to block lawsuits alleging illegal conduct on the part of the President obviously enables Obama to invoke that power whenever there are allegations that he is breaking the law.  The power to abduct people and put them in cages indefinitely without having to answer to anyone about what you’re doing — the power Obama is claiming he possesses in the Bagram case — is obviously a potent authority that a typical President fighting a “war” would instinctively want to wield.  And Howard Fineman was likely correct when he told Olbermann on Tuesday night that Obama is petrified of alienating the permanent intelligence and military establishments in Washington which might be alarmed by any attempt to abandon these vast powers, particularly where reversing course could raise the likelihood of prosecutions.

Ultimately, though, motives don’t matter.  Simply put, there is no excuse, justification or mitigation for advocating blatantly unconstitutional and tyrannical powers or claiming that secrecy shields the President from the rule of law.  Nor is the faith-based belief that Obama is a Good Person who therefore deserves trust even remotely rational or relevant.  As Professor Turley put it on Countdown:  “It doesn‘t matter if you are a good person doing bad things. You are doing bad things.”  These secrecy and detention powers are among the most dangerous and tyrannical powers a President can seize, and Obama’s attempt to cling to them is deplorable no matter his “motives.”

It’s certainly true that Democrats and liberals, in general, overwhelmingly approve of the job Obama is doing.  That makes perfect sense.  It is inconceivable that many progressives would say otherwise three months into the tenure of a new Democratic President.  The country is still celebrating the fact that George Bush and Dick Cheney are no longer in power.  And there are many important areas in which, from a progressive perspective, Obama’s preliminary actions are encouraging:  budget policy, changes in tone and even mindset in some spheres of America’s foreign policy, reversals of Bush’s most controversial domestic policies, some excellent presidential appointments.  By themselves, Obama’s future judicial nominees can justify efforts to elect him.  To condemn Obama’s executive power and secrecy abuses is not to posit that Obama is the general equivalent of Bush or that his victory over McCain/Palin was irrelevant.

It’s also possible Obama may (or may not) take actions in the future — releasing the last OLC torture memos, granting full due process rights to Guantanamo detainees, offering habeas hearings to abducted-and-rendered Bagram prisoners — that could substantially improve his record in the areas of accountability, transparency and adherence to Constitutional guarantees.  If he does those things, credit will be warranted — but only if and when he does them.  And thus far, he has not.  In most instances, he has done the opposite.

Whatever else one might say, the rule of law, the Constitution, and core civil liberties are the centerpiece of a healthy and well-functioning government, and nothing justifies an assault on those safeguards.  That was the argument most progressives made throughout the Bush presidency, and the more Obama continues on the Bush/Cheney path in this area, the more solid the progressive consensus against his actions becomes.  

UPDATE:  On Friday, I suggested to Greg Sargent on Twitter that the White House should be forced to say whether Obama supports passage of the State Secrets Act — legislation which would significantly limit Obama’s power to invoke “secrecy” as a means of blocking judicial review of presidential actions and which (during the Bush years) was supported by leading Senate Democrats, including Joe Biden and Hillary Clinton, as a response to Bush’s use of the same doctrine.  The Act was re-introduced in February of this year by Russ Feingold, Arlen Specter, John Conyers and others as a response to Obama’s abusive invocation of the privilege in the rendition/Jeppesen case. 

Sargent reports today that he posed the question and the White House simply refuses to say whether Obama supports or opposes the legislation.  As Sargent notes, the Act “represented the consensus view of the Democratic Party a year ago” and this question thus “sets up an unappetizing political prospect: The President would be opposing the corrective that is favored by prominent Senate Dems and once enjoyed the support of his Vice President and Secretary of State.”

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.

Are We Civilized Enough to Hold Our Leaders Accountable for War Crimes? The World Is Watching January 26, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush, Torture, War.
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 John W. Dean, FindLaw.com. Posted January 24, 2009.

Other countries are likely to take action against officials who condoned torture, even if the United States fails to do so.

Remarkably, the confirmation of President Obama’s Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.

It is difficult to believe that Eric Holder would agree not to enforce the law, like his recent Republican predecessors. Indeed, if he were to do so, President Obama should withdraw his nomination. But as MSNBC “Countdown” anchor Keith Olbermann stated earlier this week, even if the Obama Administration for whatever reason does not investigate and prosecute these crimes, this still does not mean that the Bush Administration officials who were involved in torture are going to get a pass.

With few exceptions, the discussion about what the Obama Administration will do regarding the torture of detainees during the Bush years has been framed as a domestic matter, and the fate of those involved in torturing has been largely viewed as a question of whether the Department of Justice will take action. In fact, not only is the world watching what the Obama Administration does regarding Bush’s torturers, but other countries are very likely to take action if the United States fails to do so.

Bush’s Torturers Have Serious Jeopardy

Philippe Sands, a Queen’s Counsel at Matrix Chambers and Professor of International law at University College London, has assembled a powerful indictment of the key Bush Administration people involved in torture in his book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values. He explains the legal exposure of people like former attorney general Alberto Gonzales, Dick Cheney’s counsel and later chief of staff David Addington, former Office of Legal Counsel attorney John Yoo, the former Department of Defense general counsel Jim Haynes, and others for their involvement in the torture of detainees at Guantanamo, Abu Ghraib, and CIA secret prisons.

After reading Sands’s book and, more recently, listening to his comments on Terry Gross’s NPR show “Fresh Air,” on January 7, 2009 I realized how closely the rest of the world is following the actions of these former officials, and was reminded that these actions appear to constitute not merely violations of American law, but also, and very literally, crimes against humanity — for which the world is ready to hold them responsible.

Here is what Professor Sands told Terry Gross on NPR: “In talking to prosecutors around the world, as I have done, they all recognize the very real political difficulties of taking on someone who has been Vice President of the United States, or President of the United States, or Secretary of Defense of the United States. But those arguments melt away as you go a little down the chain. And I don’t think the same arguments would apply in relation to the man, for example, who was Vice President Cheney’s general counsel, at the time the decisions were taken, David Addington … I think he faces a very real risk of, you know, investigation for complicity in an act that amounts to torture … ” Later, referring to “international investigations,” he added that Addington (and others) were at “serious risk of being investigated.”

These are remarkable statements from a very well-informed man. Because we have a common publisher, I was able to contact him in London, and pose a few questions. I find his book, statements and responses to my questions chilling.

Q & A With Professor Philippe Sands

The following is my email exchange with Professor Sands:

John W. Dean: When talking to Ms. Gross you said you were not calling for such international investigations because we all need more facts. Given the fact that Judge Susan Crawford has now made clear that torture occurred, do you — and others with your expertise and background — have sufficient information to call for other countries to take action if the Obama Administration fails to act?

Philippe Sands: Last week’s intervention by Susan Crawford, confirming that torture occurred at Guantanamo, is highly significant (as I explain in a piece I wrote with Dahlia Lithwick: “The Turning Point: How the Susan Crawford interview changes everything we know about torture”). The evidence as to torture, with all that implies for domestic and foreign criminal investigation, is compelling. Domestic and foreign investigators already have ample evidence to commence investigation, if so requested or on their own account, even if the whole picture is not yet available. That has implications for the potential exposure of different individuals, depending on the nature and extent of their involvement in acts that have elements of a criminal conspiracy to subvert the law.

JD: If yes, can you share what you and others might do, and when?

PS: I am in the process of completing the epilogue to my book Torture Team, which will be published in May 2009. That will set out, in detail, what I learned when I made a return visit to the European judge and prosecutor with whom I met in the summer of 2007, as described in the book. Watch this space.

JD: If no, what would it take for those like you to call for all countries with potential jurisdiction to take action?

PS: More than 140 countries may potentially exercise jurisdiction over former members of the Bush Administration for violations of the 1984 Torture Convention and the 1949 Geneva Conventions, including the standards reflected in their Common Article 3. Whether they do so, and how they might do so, turns on a range of factors, including their domestic procedural rules. In the United Kingdom, one criminal investigation is already underway, in relation to the alleged treatment of Binyam Mohammed, a Guantanamo detainee who is a British resident. I doubt it will be the last. That said, having set out the relevant facts in one case [in my book], to the best of my abilities, I feel it will now be for others to take this forward as they consider appropriate.

JD: Also, when talking to Ms. Gross you said that you did not think that David Addington and others involved in torture were likely to be travelling outside the United States. Do you know for a fact that any country might take action? Have you discussed this with any prosecutors who could do so?

PS: This will be addressed in the epilogue to Torture Team.

JD: Do you believe that a failure of the Obama Administration to investigate, and if necessary, prosecute, those involved in torture would make them legally complicit in the torture undertaken by the Bush Administration?

PS: No, although it may give rise to violations by the United States of its obligations under the Torture Convention. In the past few days there have been a series of significant statements: that of Susan Crawford, of former Vice President Cheney’s confirming that he approved the use of waterboarding, and by the new Attorney General Eric Holder that he considers waterboarding to be torture. On the basis of these and other statements it is difficult to see how the obligations under Articles 7(1) and (2) of the Torture Convention do not cut in: these require the US to “submit the case to its competent authorities for the purpose of prosecution”. What happens thereafter is a matter for the prosecutor, who may decide that, in accordance with applicable standards (“authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State”) and the facts of the case, including the prospects for a successful prosecution, that proceeding to actual prosecution is not justified.

JD: Finally, you mentioned the case proceeding in the UK regarding possible torture of a British national. Is it possible that even an American ally like Great Britain could seek extradition, and undertake prosecution, of U.S. officials like Addington and Yoo for facilitating the torture of a citizen of Great Britain — if the U.S. fails to act?

PS: It is possible. The more likely scenario, however, is that which occurred in Senator Pinochet’s case: the unwitting traveller sets foot in the wrong country at the wrong time.

What Will The Obama Administration Do?

As all who have followed this issue know, President Obama hedged after he was elected as to what he may or may not do. So too did his Attorney General nominee. After Eric Holder declared waterboarding to be unlawful, no one on the Senate Judiciary Committee truly followed up as to what he was going to do, but it appears they are going to now press him on that point.

My question is how can the Obama Administration not investigate, and, if appropriate, prosecute given the world is watching, because if they do not, other may do so? How could there be “change we can believe in” if the new administration harbors war criminals — which is the way that Philippe Sands and the rest of the world, familiar with the facts which have surfaced even without an investigation, view those who facilitated or engaged in torture?

One would think that people like Cheney, Rumsfeld, Addington, Gonzales, Yoo, Haynes and others, who claim to have done nothing wrong, would call for investigations to clear themselves if they really believed that to be the case. Only they, however, seem to believe in their innocence — the entire gutless and cowardly group of them, who have shamed themselves and the nation by committing crimes against humanity in the name of the United States.

We must all hope that the Obama Administration does the right thing, rather than forcing another country to clean up the mess and seek to erase the dangerous precedent these people have created for our country. A first clue may come when Holder resumes testifying.

Same Sex Marriage: Is the Separation of Church and State a Fundamental Issue? November 13, 2008

Posted by rogerhollander in About Human Rights, Human Rights.
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© Roger Hollander, 2008-11-13

 

(dedicated to Keith Olbermann)

 

In light of the negative results for same sex civil rights in California, Florida, Arizona and Arkansas elections on November 4, I suggest it may be helpful to take a political/philosophical/analytical look at the issue.

 

My thesis is the following:

 

Prejudice and bigotry aside, the greatest obstacle to resolving the human rights issue of same sex marriage is the unfortunate historic “marriage” of church and state in the marriage business.

 

Those who practice religious beliefs have the right to define in their own terms what a “marriage” between two human beings is.  What they don’t have a right to do is to impose that definition on anyone else, least of all the state.  Nor do they have the right to put into practice within their own communities a definition that violates human rights.  This is true regardless of the degree to which their views are honestly held versus being based upon veiled bigotry.

 

From the point of view of civil society, what is generally referred to as “marriage” has to do with certain civil rights (inheritance, taxes, adoption, etc.) and restrictions (age, bigamy, incest, etc.).  In a secular democracy where human rights are respected, these rights and restrictions need apply to everyone (it is a large part of the problem that the fundamentalist religious right in North America does not believe in or advocate secular democracy, rather they are intent upon imposing a theocracic form of government, not that different from their Islamic counterparts).

 

It has been the con(fusion) of the religious and civil concepts via state sanctioned religious marriages that has been the root of the problem.  This reality reflects itself in the fact that many who oppose same sex marriage have no problem with civil unions.

 

This, of course, is not to underestimate the impact of bigotry, religious or otherwise, on the issue.  However, it is important to have a clear political analysis with honest, clean and understandable definitions.  Just as it has been crucial with respect to women’s reproductive health rights that the issue be defined as pro-choice and not pro-abortion; it is essential that those who favor same sex civil rights recognize and take into account that anti-gay bigotry is one thing, and the fundamental issue of the separation of church and state is another.

 

From a pragmatic political perspective, had the No vote for Proposition Eight prevailed in California, then perhaps it would have turned out for the good to have fought the battle on the grounds of “gay marriage.”  Furthermore, it is understandable that men and women who are gay and Lesbian should feel entitled to the same rights and the rest of the population, even if the social institution of concern is morally or politically flawed.  A gay or Lesbian pacifist, for example, would not be in self-contradiction advocating for equal rights in the military.

 

Nevertheless, in the long run I believe it is always best to struggle on the grounds of reason and justice even if it is going to entail a long and arduous battle.  Plato said that we should judge the actual by the ideal and not the other way around.  Separating religious union from civil union should therefore should never be lost sight of as the fundamental objective; it should be the long term goal regardless of tactical manoeuvres that may make sense along the way.

In an ideal world civil union would be the broader category; every couple who wished to be considered legally a single unit by the state, regardless of sexual orientation and regardless of religious affiliation, would be required to have their union performed and sanctioned by the state.  Amongst that larger population, those with religious beliefs would be free, in addition, to be “married” by their church authority.

 

In and ideal world, a church that believed that “marriage” should only be between a man and a women, might only consider as “married” those both within and outside their community who meet that definition, but would in no way discriminate against same sex couples either within or outside their communities, who have entered into state sanctioned civil unions.

 

A final tangential thought.  When I was a student in the 1950s and 1960s, I could not have conceived that in my lifetime we would see the election of an Afro-American President in the United States.  I regret to say that at the moment, I find it just as hard to conceive of the election of an openly gay or Lesbian President in my children’s lifetime.  It is my fervent wish nonetheless that History will prove me wrong once again.

 

 

 

 

 

 

 

 

Keith Olbermann’s Special Prop 8 Comment: “It’s About the Human Heart” November 12, 2008

Posted by rogerhollander in Political Commentary.
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Finally tonight as promised, a Special Comment on the passage, last week, of Proposition Eight in California, which rescinded the right of same-sex couples to marry, and tilted the balance on this issue, from coast to coast.

Some parameters, as preface. This isn’t about yelling, and this isn’t about politics, and this isn’t really just about Prop-8. And I don’t have a personal investment in this: I’m not gay, I had to strain to think of one member of even my very extended family who is, I have no personal stories of close friends or colleagues fighting the prejudice that still pervades their lives.

And yet to me this vote is horrible. Horrible. Because this isn’t about yelling, and this isn’t about politics.

This is about the… human heart, and if that sounds corny, so be it.

If you voted for this Proposition or support those who did or the sentiment they expressed, I have some questions, because, truly, I do not… understand. Why does this matter to you? What is it to you? In a time of impermanence and fly-by-night relationships, these people over here want the same chance at permanence and happiness that is your option. They don’t want to deny you yours. They don’t want to take anything away from you. They want what you want — a chance to be a little less alone in the world.

Only now you are saying to them — no. You can’t have it on these terms. Maybe something similar. If they behave. If they don’t cause too much trouble. You’ll even give them all the same legal rights — even as you’re taking away the legal right, which they already had. A world around them, still anchored in love and marriage, and you are saying, no, you can’t marry. What if somebody passed a law that said you couldn’t marry?

I keep hearing this term “re-defining” marriage.

If this country hadn’t re-defined marriage, black people still couldn’t marry white people. Sixteen states had laws on the books which made that illegal… in 1967. 1967.

The parents of the President-Elect of the United States couldn’t have married in nearly one third of the states of the country their son grew up to lead. But it’s worse than that. If this country had not “re-defined” marriage, some black people still couldn’t marry…black people. It is one of the most overlooked and cruelest parts of our sad story of slavery. Marriages were not legally recognized, if the people were slaves. Since slaves were property, they could not legally be husband and wife, or mother and child. Their marriage vows were different: not “Until Death, Do You Part,” but “Until Death or Distance, Do You Part.” Marriages among slaves were not legally recognized.

You know, just like marriages today in California are not legally recognized, if the people are… gay.

And uncountable in our history are the number of men and women, forced by society into marrying the opposite sex, in sham marriages, or marriages of convenience, or just marriages of not knowing — centuries of men and women who have lived their lives in shame and unhappiness, and who have, through a lie to themselves or others, broken countless other lives, of spouses and children… All because we said a man couldn’t marry another man, or a woman couldn’t marry another woman. The sanctity of marriage. How many marriages like that have there been and how on earth do they increase the “sanctity” of marriage rather than render the term, meaningless?

What is this, to you? Nobody is asking you to embrace their expression of love. But don’t you, as human beings, have to embrace… that love? The world is barren enough.

It is stacked against love, and against hope, and against those very few and precious emotions that enable us to go forward. Your marriage only stands a 50-50 chance of lasting, no matter how much you feel and how hard you work.

And here are people overjoyed at the prospect of just that chance, and that work, just for the hope of having that feeling. With so much hate in the world, with so much meaningless division, and people pitted against people for no good reason, this is what your religion tells you to do? With your experience of life and this world and all its sadnesses, this is what your conscience tells you to do?

With your knowledge that life, with endless vigor, seems to tilt the playing field on which we all live, in favor of unhappiness and hate… this is what your heart tells you to do? You want to sanctify marriage? You want to honor your God and the universal love you believe he represents? Then Spread happiness — this tiny, symbolic, semantical grain of happiness — share it with all those who seek it. Quote me anything from your religious leader or book of choice telling you to stand against this. And then tell me how you can believe both that statement and another statement, another one which reads only “do unto others as you would have them do unto you.”

You are asked now, by your country, and perhaps by your creator, to stand on one side or another. You are asked now to stand, not on a question of politics, not on a question of religion, not on a question of gay or straight. You are asked now to stand, on a question of…love. All you need do is stand, and let the tiny ember of love meet its own fate. You don’t have to help it, you don’t have it applaud it, you don’t have to fight for it. Just don’t put it out. Just don’t extinguish it. Because while it may at first look like that love is between two people you don’t know and you don’t understand and maybe you don’t even want to know…It is, in fact, the ember of your love, for your fellow **person…

Just because this is the only world we have. And the other guy counts, too.

This is the second time in ten days I find myself concluding by turning to, of all things, the closing plea for mercy by Clarence Darrow in a murder trial.

But what he said, fits what is really at the heart of this:

“I was reading last night of the aspiration of the old Persian poet, Omar-Khayyam,” he told the judge.

“It appealed to me as the highest that I can vision. I wish it was in my heart, and I wish it was in the hearts of all:

“So I be written in the Book of Love;

“I do not care about that Book above.

“Erase my name, or write it as you will,

“So I be written in the Book of Love.”

Good night, and good luck.

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