This is the sixth article in our “issues” series being written in conjunction with Dave Schuler’s series at The Glittering Eye. The first article in the series, on Foreign Affairs, can be found here. The second article, on Fiscal Policy, can be found here. The third article, on Economic Policy, can be found here. The fourth article, on Health Care Policy, can be found here. The fifth article, on Energy Policy, can be found here.

Although frequently lost in the furor surrounding foreign policy and the current economic crisis, the concept of civil liberties remain at the core of what the United States is all about–especially when there are crises. Thus, it’s important to focus on the candidates’ positions and records on these issues.

Criminal Law Matters

McCain has taken the standard GOP position on the death penalty: he supports it. Obama has highlighted numerous problems with the death penalty, including the increasingly high exoneration rate. Obama doesn’t call for an outright end to capital punishment, but calls for major reform both in the administration of the death penalty and law enforcement generally. For example, while a state legislator in Illinois, pushed through a law requiring all police interrogations to be videotaped. This mechanism was focused on reducing the number of coerced confessions that were going through the Illinois system at the time.

McCain also supports mandatory minimum sentences and opposes the legalization of medicinal marijuana. Obama has advocated against mandatory minimums and called for reforming sentencing disparities in the drug system. He would also divert first-time non-violent drug offenders into rehab programs rather than prison.

There are limited circumstances where I think rehab in lieu of jail is warranted, but in a large portion of cases rehab is a joke. Most marijuana users aren’t addicts, they just don’t give a rat’s ass that marijuana use is illegal. And rehab isn’t going to work if the cocaine addict is just trying to get out of a prison sentence. Forced rehab has another potential problem. Since so many rehab programs are modeled on Alcoholics Anonymous, which is a religious program, this could raise religious freedom issues if not done carefully.

While some of Obama’s criminal justice reforms are better than others, McCain’s apparent lack of desire to institute any sort of reform to a clearly flawed criminal justice system is puzzling. So while Obama’s reform plans are hit and miss, that he acknowledges the problem put him significantly ahead of McCain in this area.

Free Speech Issues

Obama is holding the standard Democratic party line on most first amendment issues. He supports campaign finance reform and hate crimes legislation.

Campaign finance reform cannot be mentioned in modern politics without automatically invoking the name John McCain. It’s possible there was no more fervent proponent of the idea throughout the 90s than McCain. Furthermore, McCain also supports a constitutional amendment banning the burning of the US Flag in protest. Surprisingly, this puts McCain at odds with First Amendment advocates on both the left and the right. I would submit that this makes Obama the somewhat better candidate on First Amendment issues.

LGBT Issues

Neither candidate endorses gay marriage. Both candidates oppose attempts to amend the US Constitution to ban gay marriage.

The two issues that really separate the candidates are Don’t Ask Don’t Tell, which McCain supports and Obama opposes, and the inclusion of sexual orientation in employment discrimination law, which McCain opposes and Obama supports. Given the clear operational hit our armed forces have taken under DADT, it seems pretty clear that Obama’s plan is not only better for gay rights, but better for military preparedness. As I’ve stated in a previous article, I’m not a big fan of selective enforcement of anti-discrimination laws. So I’m pretty clearly not going to be a fan of denying the gay community protections against discrimination while granting it in race and gender discrimination situations.

War on Terror

Did you know John McCain was a prisoner of war in Vietnam?  Really!  It’s true!  In fact, McCain seems to be showing that he understands just how inhumane detainee treatment can be by supporting laws like the Detainee Treatment Act.  While McCain has spoken out against extending the restrictions on interrogations techniques found in the DTA to interrogations the CIA, McCain claims that the bill was unnecessary because the CIA was already legally prevented from using such techniques.  Assuming McCain was truthful about that, it seems clear that McCain’s stance on detainee treatment will clearly be one of humane treatment.

Obama’s position is pretty much on par with McCain.  Obama has specifically attacked the practice of extraordinary rendition and the torture of prisoners in Guantanamo Bay and other places.  While McCain’s rhetoric emphasizes that defending America is a high priority and Obama’s does not, it seems highly unlikely that either candidate, in light of their views on the specifics, would arrive at a different conclusion when faced with an issue regarding inhumane treatment of people in American custody.  So on this point, both McCain and Obama are close in their positions.

Conclusion

It seems pretty clear from the available evidence that the civil liberties candidate is Obama. While McCain is not a bad candidate in most ways, he represents the status quo in a number of areas that are desperate for improvement, particularly with the criminal justice system. As a constitutional law scholar and a civil rights lawyer, it only makes sense that he would take a harder line in support of civil rights and civil liberties than even mainstream democratic candidates. And on these issues, even people who normally decry Obama’s lack of experience can’t really argue with a constitutional law professor who has written legislation that actually helped to rein in police brutality.