What 'Instapundit' Gets Wrong About Nakoula Basseley Nakoula and Civil Liberties

A conservative blogger's call for President Obama to resign because the anti-Islam filmmaker was questioned by police betrays a weird lack of perspective.

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I've been a constant critic of the Obama Administration's abysmal record on civil liberties. If President Obama put out a statement saying, "After reflecting on the ways I've betrayed the promises I made during the 2008 election, especially in the realm of upholding core Constitutional protections, I've decided to resign my office," I'd enthusiastically cheer his decision. Those causes are more important to me than any others. Obama has been disastrous for them.

Despite my contempt for Obama's record, which includes serious violations of domestic and international law, I could hardly take Glenn Reynolds' weekend post calling on him to resign. For me, it epitomizes the blinkered priorities of right-leaning bloggers in post-9/11 America.

The post was prompted by the FBI's decision to descend on the house of Nakoula Basseley Nakoula, the filmmaker responsible for the anti-Islam movie that has purportedly sparked riots in various Muslim majority countries. Nakoula's speech is protected by the First Amendment, but it's possible that he violated the terms of his probation in the course of making the movie. Law enforcement therefore had the legal prerogative to bring him in for questioning. I am on record in another item lamenting the signal the FBI sent by exercising that prerogative. It was a potentially chilling, foolish mistake.

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And Reynolds and I have both associated ourselves with UCLA Eugene Volokh's thoughts about the subject

So what vexed me about Reynolds' post?

Let me put it this way. Since 9/11, two presidents have, between them, done these things without Reynolds calling on them to resign:

  • Established and executed a secret torture program.
  • Illegally spied on millions of innocent Americans without warrants.
  • Launched a war without Congressional approval and in violation of the War Powers Act. 
  • Extrajudicially assassinated American citizens without due process. 

I don't like that federal agents took this guy, on probation for bank fraud, in for voluntary questioning, but for goodness' sake, that's the abuse that has Reynolds superlatively upset? It isn't that I care to defend the FBI or Obama. I'm just incredulous: Reynolds is really more upset over this than torture, Orwellian spying, an affront to the separation of powers, and extrajudicial killing.

I'm still glad Reynolds is speaking up in defense of the filmmaker.

But the civil-libertarian cause is diminished when it appears as if it's opportunistically invoked as a cudgel against ideological opponents. Democrats seemed to do that, excoriating President Bush on issues like indefinite detention, only to fall silent or sign on when Obama adopted the same policies. This case has similarities and differences. On his blog, Reynolds frequently links to libertarians, and I don't doubt that he harbors within himself genuine civil-libertarian impulses.

At the same time, he is woefully inconsistent, either due to his simultaneous identification with Team Red and its blind spot for liberty lost to the War on Terrorism, or because he misjudges which policies and events most gravely threaten liberty, whether directly or through the precedents they set.

This isn't one of the most dangerous ones.

I don't mind the idea of Reynolds calling on politicians to resign every time they violate their oath to uphold the Constitution. If he wants to be taken seriously, he's going to have to be more consistent in his outrage, and acknowledge the fact that Mitt Romney is also on record affirming his intent to pursue various unconstitutional policies (here is one of several examples). Otherwise it starts to look like civil liberties are just something invoked to ding the guy you want to lose the next election. Then everyone who consistently writes about these issues has a harder time persuading readers that it isn't just about partisan politics, it's about liberty. If Reynolds wants to call on Obama to resign for reckless precedents he has set or individual instances in which his administration violated the Constitution, there are plenty of examples from which to choose. But just about all of them are things Republicans happen to support.

For tangentially related analysis, see "The Hard Right Is Paranoid About the Wrong Things." 

Here's one other thing that annoyed me in Reynolds' post. He writes (emphasis added): "By sending -- literally -- brownshirted enforcers to engage in -- literally -- a midnight knock at the door of a man for the non-crime of embarrassing the President of the United States and his administration, President Obama violated that oath." 

You know who else "literally" sends brown shirts to the doors of Americans? UPS.

I don't know how to more succinctly convey how inane it is to dwell on the fact that the Los Angeles County Sheriff's deputies who took him in for questioning wore khaki uniforms. I mean, argue they're figurative brown shirts if you like. But I very much doubt Reynolds thinks L.A. County Sheriffs are at all like Nazi storm troopers. His "literally" is about as illegitimate a rhetorical ploy as you'll see.

And what are we to make of his supposition that Nakoula was questioned for embarrassing Obama? There are all sorts of reasons federal authorities might want to talk to this guy, given world events at the moment. The presumption that the real reason is that he embarrassed Obama is totally unsupported by any evidence, and raises a significant question: Why should the Obama Administration be embarrassed by the film or the reaction of the Muslims who rioted, apparently in protest of it?