Law in Contemporary Society

Note: The original first paper is on this page, below the revision.

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.

Obama, Hope and the Godcon (original paper)

-- By AnjaliBhat - 27 Feb 2009

Barack Obama was widely perceived as a uniquely inspirational candidate, one who appealed to moderates and independents but also to an idealistic base of people enraged about foreign policy, torture, civil liberties and poverty. His campaign seemed to give people permission to talk about hope, change and justice in a sincere and non-ironic fashion. While many of his supporters voted for him in full cognizance of the limits of what he could do as president, and indeed some of the moderate and conservative Obama voters may have voted for him precisely because of those limits, there were also many who expected great things from him. Among those, the belief that Obama was not an ordinary politician seemed prevalent. He seemed to hold the promise of solving lots of problems: a horrible economy, Iraq, and America's age-old problems with race. Some of his actions after the election have been in keeping with this promise, but many others have been the exact opposite. Pointing this out sometimes elicits reactions of anger and defensiveness. In what way is this dynamic similar to the cons Leff describes, and if so, what kind of con?

Obama's actions and some reactions to them

Obama portrayed himself to his base as a liberal uniquely gifted in communicating with those who disagreed with him, but also committed to his own principles. One of the major selling points for him over Hillary Clinton in the Democratic primary was that Clinton had voted to authorize George W. Bush to invade Iraq. Obama had never done any such thing, making her directly complicit in the much-hated war in a way that he was not. Obama also spoke of the hope of transcending past mistakes, from Iraq to the economy to racism.

Since taking office, Obama has signed an executive order closing Guantanamo, a move many were clamoring for and hailed as a major symbolic victory when Obama announced his intention to make it. Obama also signed an executive order ending CIA secret prisons, mandating that interrogations follow the Army Field Manual, and ending the global gag rule. Yet Obama has taken other measures of the type that his idealistic supporters scorned during Bush's term. His administration has affirmed the Bush policy that detainees in Afghanistan have no legal right to challenge their detention and retained rendition as a counterterrorism tool. There has been little expressed criticism of the former from Obama supporters. Civil libertarian Obama-supporting lawyers like Scott Horton and Glenn Greenwald have reacted to the latter by mistakenly accusing the LA Times of confusing “extraordinary rendition” with just “rendition” (Horton) and claiming that the article is symptomatic of an attempt on the part of Bush loyalists, intelligence officers, the establishment media and nihilists to get people to lose faith in Obama (Greenwald). In addition, Greenwald posed a somewhat contrived hypothetical to defend rendition (a possible argument, but I wonder if Greenwald would have made it while Bush was president), while Horton confined himself to emphasizing that extraordinary rendition was much worse. Both had more reasoned later responses, but the initial one was anger and defensiveness: similar to reactions I have gotten when bringing this up to people in political conversations.

Why this reaction?

But why the defensiveness? Why not simply defend Obama on the merits, or admit that he did wrong? After all, admitting this would not negate the argument that he was still much better than the alternatives. It is in this defensiveness that I see fear of having been conned, and anger at those who appear to be pointing out the con. If one believed wholeheartedly in a heroic and charismatic leader uniquely capable of helping the country in unprecedented ways, then one will feel conned if he turns out to be just a more-decent-than-average politician. Obama inspired his base to trust and believe in him, despite the cultural tendency to project an aura of cool apathy and the liberal value for skeptical questioning. This was partly because of the factors touched on in Judith Warner's “Dreaming of the Obamas” article: he's charismatic, high-achieving, has a fascinating biography and seems to have an exciting, even sexy, current life. He could get away with appealing to idealism because he was so obviously cool, and he thereby gave his supporters “permission” to care and dream as well.

Furthermore, and perhaps more importantly, he is extremely intelligent and gives the impression of someone who is interested in ideas for their own sake. This is especially important because those who supported Obama are often of demographics bashed by conservatives for being too eggheaded. Some turn this into a point of pride: liberals are more rational than conservatives, so the song goes, more independent-minded and less prone to being swept up by the emotional currents generated by religion, patriotism and “strong leaders.” This view may even have some truth, as liberal value systems generally include an emphasis on questioning authority that conservative ones traditionally do not. But because Obama is so intellectual, believing in him could not be a stupid or mindless thing to do. Therefore, for many among his more fervent supporters, Obama provided a unique opportunity to believe in a leader without sacrificing self-respect. If the belief proves to be misplaced or exaggerated, the result is a loss of self-respect even worse than that of the “mark” in an ordinary con. Here the marks pride themselves on intelligence, independence of mind and a certain ironic detachment, and yet were taken in by a desire for a leader.

A con? And what kind?

To clarify, I am not arguing that hopes in Obama have been completely misplaced or even that his supporters have been "conned" in the sense of being cheated. Rather, I am arguing that the dynamics of belief, hope, fear and defensiveness among his supporters are con-like. I believe Obama's campaign can be described as similar to Leff's “Godcon.” He publicly offered something ineffable and potentially plentiful—hope—in exchange for monetary and other support. The purpose of the deal was to benefit America and humanity in general and give them a share of the hope. “Hope” can substitute for “grace” in Leff's formulation. But unlike in a true Godcon where you don't know if you were truly saved until you die, we will be able to find out whether the distributed hope had any real foundation in the next few years.

  • I think the mechanism of the essay obscures rather than illuminating. There were unusually strong feelings among the electorate and the rest of society during last year's campaign. Many people followed the inauguration and early weeks of this administration as they have done with no other in their lifetimes. Circumstances have caused people who usually feel that they have no expectations from politics to look to this President and this Administration to save them from serious economic injury. Political supporters, many of them passionate, knowing what is at stake, are reluctant to break with the president over any issue, and would prefer to overlook the inevitable compromises and disappointments. Why do we need to discuss con games in order to appreciate the role that repression of cognitive dissonance has in the attitudes of political supporters of this or any other administration?

  • I don't doubt that without the Leff mechanism you can write an accomplished and self-consistent essay on this theme. I wonder, however, whether it serves you well to do so. Switching perspectives, and asking what the public-communications problems of the Administration are, and outlining how to handle them, would be very much more challenging and a better showcase for your talents.

* 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.

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r4 - 20 Apr 2009 - 17:16:20 - AnjaliBhat
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