Obama Coming Up Short on Civil Liberties

Is he delivering or not? That seems to be a dividing line right now among democrats and liberals. Is President Obama delivering on the change promised during the campaign? The answer to that depends in part on what you thought he meant by change. Other contributing factors to your view probably include the time frame he has had to operate in, the conditions of the media, the general lameness of the senate, and your own level of idealism versus pragmatism. For instance, i am not going to be satisfied with the end result of HCR, im not going to get the same choice members of congress get. democrats should stop saying that i will. Of course i really didnt have expectations that i would so i dont take that too hard. Civil Liberties on the other hand, i was really expecting better.

A diary currently on the rec list includes this,

President Obama's second core campaign promise was to make government more transparent and accountable, to rebuild a sacred trust that had been seriously eroded. And he has delivered. He closed the revolving door, forbidding anyone who works in his administration from lobbying when they leave their jobs. For the first time in history, names of visitors to the White House will be released, so every American can see which interests and individuals are visiting their government. And the groundbreaking website recovery.gov is allowing Americans to trace every dollar spent and every job created or saved from the recovery act, adding a level of transparency never before seen.

I think that this overstates the magnitude of the actions. I am however willing to grant that he has done some things to increase transparency in some areas. However our capital is generally the color of tar on a whole host of issues including the tarp money and many of the fed's practices. Let's not pretend that everything in washington is exposed to sunlight at this point. Lobbying still exists. Shady back room deals still happen. Beyond this stuff though i feel like part of this campaign promise of openness and sunlight was a reformed legal policy dealing with civil liberties.

There are several key aspects of civil liberties policy that i understood from candidate obama were going to be addressed. I dont think they are disputable. The first is the closure of Gitmo. Next is the end of the military commissions for trying terror suspects. Finally, the end of the extreme use of the state secrets privilege to toss out uncomfortable lawsuits that resulted from Bush Era abuses.

None of those things are happening nor do they look to happening any time soon. There seems to be some movement on DADT which is a policy that candidate Obama was in favor of repealing. It gets talked about without any action. The repeal of that program would most likely buy Obama more credit with those critical of him. Part of the problem is that he really doesnt have a great starting deposit. Almost immediately, he started off badly with the state secrets issue and the military commissions.

In early February, he had an opportunity to back up campaign rhetoric and make a break with Bush on state secrets.

Obama Administration Maintains Bush Position on 'Extraordinary Rendition' Lawsuit

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn't changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

This is not going to please civil libertarians and human rights activists who had hoped the Obama administration would allow the lawsuit to proceed.

It hasnt improved with time either,

Attorney General Eric Holder says a lawsuit in San Francisco over warrantless wiretapping threatens to expose ongoing intelligence work and must be thrown out.

In making the argument, the Obama administration agreed with the Bush administration's position on the case but insists it came to the decision differently. A civil liberties group criticized the move Friday as a retreat from promises President Barack Obama made as a candidate.

Holder's effort to stop the lawsuit marks the first time the administration has tried to invoke the state secrets privilege under a new policy it launched last month designed to make such a legal argument more difficult.

In addition the administration took a hard line on the media shield law demanding that the national security arguments be removed from the balancing test used to determine if compulsion of sources is required.

President Obama has also declined to eliminate the military commission as an available forum for the trial of accused terror suspects.

Looking at the steps he has taken, the tinkering made, and the lack of action im not happy. I dont think president Obama is doing a good job here and i do not believe he is delivering on the change he offered in the campaign. I understand he has only had nine months but these are actions taken in the wrong direction not simple inaction. There is no argument that the President has lacked opportunity he has simply not delivered.

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The Next Justice

With the recent confirmation of Sonia Sotomayor President Obama managed to add two axis of diversity to the Court. So whats next? Given the temperament of both obama and justice sotomayor i dont envision obama nominating someone radically different in judicial philosophy or style. When you have nailed down the type of person that president obama is likely to nominate the next logical question is exactly what vessel the philosophy will come in. i think Obama should actually nominate another woman of color. My prediction is that he will nominate a white guy the second time around.

It would be a bold stroke to nominate another woman of color. Given the rather white and male history of the court adding more women to the mix sets an important precedent. Adding a woman should be common place, unremarkable. It can only get that way if presidents establish a pattern of nominating women often. Likewise nominating people of color, asian or black or latino or whatever it doesnt matter, is something that should be considered common. If President Obama doesnt start to establish the precedent i am not confident it will happen any time soon.

The reason i am skeptical about the nomination of another woman of color to the Court is that the reaction will be great at this point in time. I do believe their would be a rather large racial backlash from the right claiming that the black man is executing an affirmative action plan for minorities by nominating them to the court. This would likely be a big political headache for the president and i doubt obama cares enough about placing an actual woman or minority on the bench as long as he feels their interests are well represented by the person he does choose. Its a fight he doesnt have to engage in. Instead he can preserve all his energy for fights on his other big challenges like energy reform or immigration reform or health care reform if we are still dealing with that.

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Ricci and the Courts Race Neutral Desires

By now im sure those who read this are well aware that the SCOTUS reversed the lower courts decision in Ricci v. DeStefano. The Ricci decision couldnt have been all that surprising given the result of the Seattle Schools Cases. Its clear that at this point in time a majority of the court is of the belief that racism has been largely solved in this country, at least as it pertains to overt acts of discrimination in employment. Ricci sits squarely at the center of the conservative view that race conscious measures are simply not acceptable.

Justice Kennedy's majority opinion holds that an employer may not use race-conscious measures to try to avoid "disparate impact" liability under Title VII of the 1964 Civil Rights Act unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." cite link

The problem of course is deciding what "a strong bases in evidence means". The Court shifts the traditional burden from one on employers to show they weren't discriminatory to a new burden on those who fear disparate impact suits to explain why the disparate impact arose. Marcia McCormick, who blogs at Workplace Prof Blog explains

The majority’s legal analysis starts from this premise: The City chose not to certify the examination results because of the statistical disparity based on race, and that this was express race based decision making which Title VII prohibits. Considering the race-based effects of the testing and rejecting the test on that ground was taking an adverse action because of an individual’s race. . . .

As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It’s also an implicit rejection of the basis for the Court’s early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that. Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system. (emphasis added)

This is a very old fight. The question of whether the problem between races in our society is in the people or structural. Liberals find the problem to be structural, poor education, lack of a nurturing environment etc. The difference is that the conservatives now have a majority of the Court. The conservatives now have the ability to impress the ideology -- the theory of race -- that they hold onto reality. As much as i would love to believe that we are beyond race and that everyone has an equal start at this point in time that is simply not the case.

The failure to accept that there are structural inequities that have created minority underclasses and that creating this underclass is a negative for America is problem. Conservatives have a view that everyone operates as individuals and that the creation of the poor minority underclass has no effect on them or their lives or the greater future of America. This clearly isnt true.

Simply put, to maximize the potential of the American population we cannot allow a permanent poor minority underclass. Its a waste of talent and resources. As a country we need doctors, nurses, scientists etc and we need more and more brain power to compete in a global economy. What sense does it make to restrict actions in such a way as to prevent us from closing achievement gaps and increasing equality in our society?

I would prefer to carry out most of affirmative actionesque policies on an economic basis but its not always going to be convenient or helpful to do so. Cases of employment discrimination where minorities arent able to advance because of ostensibly neutral tests that create disparate impacts are such instances. If you have a test that consistently allows white people to advance over minorities by huge margins there are only a couple of possibilities for this. One is that the white people are simply better for that job. another is that there is something in the test that is advantaging whites. If whites were consistently better for the job wouldnt we need to specifically target the minorities to rectify what was making them so much worse on the test? Conservative reasoning about race conscious policy would seem to suggest that we cant. We should continue to let the minorities fail to advance and the whites to succeed and that no problems come from this. The SCOTUS probably agrees with that right now.

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Roberts Court as the Second Lochner Era

In examining some of the recent decisions handed down by the SCOTUS i have to feel like we might be witnessing history. I dont mean the positive jackie robinson breaking the color barrier history but the bad tanks rolling into Hungary kind. The Roberts court has issued and will continue to issue a number of important 5-4 decisions that will gut or otherwise roll back the rights and protections american's believe that they enjoy. The decisions of the Roberts Court will continue to do injustice until kennedy or one of the solidly right wing justices retires. However, the Courts decisions have fallen out of step with the general movement of the population and the Roberts Court will end up looking as out of place during its time as the Lochner Court did preceding and during the New Deal.

I think that it is very interesting that the conservative judicial reign began just as the conservative political reign came to a screeching halt. The political shift of the SCOTUS has been steadily rightward since the beginning of the Rhenquist Court and has reached new hieghts with the Roberts Court. Its almost a cruel twist of fate that we couldnt get rid of Bush quite early enough to prevent him from leaving his lasting impression on the court's balance.

The narrow 5-4 the majority commonly commands has led to several decisions that i think history will not look kindly upon. Included would be, District Attornies Office v. Osborne, Gross v. FBL Financial Services, Davis v. Federal Election Commission, Seattle Schools Case, to name a prominent few. In addition Roberts dissent in Caperton v Massey Coal is another decision likely to elicit criticism for a long time to come. Each of these cases exemplifies Jonathon Turley's description of roberts,

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

The problem of course is that the current Republican Party is incredibly unpopular. By reveling in conservatism Roberts and his conservative cohorts place the court in opposition to the general desires of the population. Lets not kid ourselves either, SCOTUS decisions are often policy based and policies are often a reflection of politics. For example conservatives generally have a deference to authority, a pride in stability, a preference for concrete rules, essentially combining into a formalist approach favoring procedural due process over substantive due process. I think these traits are strikingly evident in two of the above mentioned decisions, Massey and Osbourne.

In his Massey dissent Roberts writes,

Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Roberts makes the assertion that allowing for more claims of bias will undermine the confidence that people have in the judiciary. He seems to be missing the big issue in this case, the fact that a judge sat on the case of a man who spent three million dollars to get him elected. Thats a lot of money in a judicial election where the incumbent lacks real name recognition and the electorate lacks sophistication on legal issues. Its hard to imagine that the money didnt move votes and nobody believes that the judge was impartial. these circumstances are extreme and unique. Yet Roberts has 40 horrible outcomes he predicts will result from the decision. The problem is that in this case, the judge really appeared to be biased and didnt get off the case. IMO TGM's Scott Lemioux has it correct when he wrote that,

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today's ruling. To the extend that today's decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

We see the same disregard for the substantive justice in favor of form and wishful assertion when Roberts denies the ability of a prisoner, William Osburne, to pay for his own dna tests in an effort to show his innocence.

At the same time, DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540–548 (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

Roberts central assertion here is that if they allow this guy to have DNA testing they have to allow everyone to have DNA testing. That jury verdicts will cease to have meaning because they can be second guessed by DNA. Citizens will think that the system isnt perfect because innocent people get convicted. This assertion is simply wrong. Allowing testing, especially if its on their own dime, will only improve confidence in the system. Allowing the innocent to remain behind bars in order to preserve the system illustrates a commitment to form and procedural due process. rather than substance. The system and procedure must be protected for its own sake instead of being protected because it provides real protections.

Roberts opinion in the Seattle Cases fits this line of thought as well. His oft quoted soundbyte -- "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race[.]" -- exhibits a fundamental rejection of the complexity of racial inequity in this country. To simply proclaim everyone as being equal will not make it so. To provide entirely equal procedural protections wont help if minorities are never in a position to use them. Imagine everyone has to fill out the same forms for a job but the minority cant read the forms and the white people get half the answers from their parents. Same forms and on their face not biased but the minorities are at a huge disadvantage.

Taken together the body of law left by the Roberts Court will be one of the most business, government, wealthy, powerful, friendly in history. All of this goes against what the general public would most likely want. People want the innocent to be let out of jail and they want the judges who receive massive campaign contributions to recuse from the contributors cases. While racially oriented programs are much less popular they served the important purpose of helping to level out a structurally titled playing field. People dont want millionaires to simply be able to buy elections. People generally frown on allowing discrimination against the elderly. The list goes on and on.

While it may be cliche the arc of history bends towards justice and the Roberts Court does not seem to be bending that way. This indicates they are likely to stick out as a Court in opposition to the felt necessities of the time just as the Lochner Court does. The biggest problem is that we are stuck with the 5-4 split until Kennedy retires and a left of center judge is placed in that seat. only then does the court step back from the dismantlement of the warren courts constitutional protections.

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Even Bad People Deserve Good Lawyers

The NYT has a piece up on the upcoming confirmation of Erik Holder as Attorney General. This piece focuses on the increased opposition from Republicans in the Senate who are "concerned" about the clients that Mr. Holder represented while in private practice. They seem to believe that there will be conflicts of interest so great that it prevents Holder from doing his job. Now we will put aside the fact that this comes from the GOP the party of corporations, big business, and corruption. Let sexamine exactly what the GOP is alleging here about lawyers role in society, the criminal justice system, and civil dispute resolution.

From the Times,

“We’ve had eight years of an administration that turned a blind eye to corporate criminals,” said Terry Collingsworth, a Washington lawyer who is suing Chiquita over the Colombian protection money and is facing Mr. Holder in the case. “We need someone with his level of experience and cachet to clean up the Justice Department. Yet I do have a concern and I sure hope that he doesn’t carry over his corporate defense practice into his approach to the job and how he handles these types of cases.”

When the National Football League was facing a legal and public-relations disaster in 2007 over a dogfighting scandal involving the Falcons quarterback Michael Vick, it turned to Mr. Holder to help navigate the maelstrom and represent the league. The pharmaceutical giant Merck tapped him as its lawyer in a Medicaid overbilling case that ended in a $671 million civil settlement. And Rod R. Blagojevich, the now-impeached governor of Illinois, picked him, albeit briefly, to investigate for the state a controversy over a casino development and its possible ties to organized crime.

Already, Mr. Holder’s brief association with Mr. Blagojevich has drawn scrutiny from Republicans, who are waging a more spirited campaign against Mr. Holder’s nomination than many had anticipated. Until now, most of the scrutiny has focused on controversies during the nominee’s time as deputy attorney general at the end of the Clinton administration, particularly his role in the pardon of the fugitive financier Marc Rich.

In responding to written questions from the Senate Judiciary Committee, Mr. Holder made no mention of a 2004 announcement in which Mr. Blagojevich introduced him as a “special investigator” under a $300,000 contract with the state.

The appointment fell through, and Mr. Holder’s aides said his failure to mention the episode had been an oversight that was soon corrected. But some Republicans said they were troubled by the omission. Three Republican senators on the Judiciary Committee — Tom Coburn of Oklahoma, John Cornyn of Texas and Charles E. Grassley of Iowa — sent the governor’s office a Freedom of Information Act request last week seeking documents on the aborted agreement.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, sharply questioned Mr. Holder’s character and political independence in a speech last week on the Senate floor. Mr. Specter told reporters Friday that he wanted to see more information about Mr. Holder’s private practice, to assess whether he was up to the job of attorney general.

I am sure they are very excited about the Blago link. These Republicans were untroubled by the incompetent people who have filled every executive department under Bush. They were untroubled by the mess created at the DOJ under Bush where the law was bent and malformed to suit their purposes. They were perfectly fine with the unqualified lawyers and severely skewed priorities. Instead they have been full throated supporters and enablers of Bush and his ridiculous legal policies. Now they want to come out and attack Holder for representing clients who need a defense.

I have a big problem with those who attack defense lawyers. Under our system of laws everyone is entitled to a defense. Murderers and Rapists and Corporations are all entitled to a defense. This means that someone must be there to defend them. Someone has to do that. Our system cannot function without a proper defense. Otherwise those who were forced to become involved in the system would have no confidence in its ability to meet out justice. If you were accused of a crime you did not commit yet everyone thought you had you might not end up with a competent defense without good lawyers to defend you.

Even those people who have in fact committed crimes deserve a defense. In those cases we can keep the system honest. Make sure the prosecution proves their case Beyond a reasonable doubt and that they did not violate the laws to do so. Unless those accused of misdeeds can have a good defense the prosecution will simply run over the innocent as well as the guilty.

I differentiate lawyers who defend the guilty from ad execs or people like mark penn because corporations are not entitled to a good public image. we might function better if the general public was not being sold on a rehabbed image of an amoral corporation.

Everyone is entitled to good defense. If the republicans succeed in killing the Holder nomination because he represented some big corporate clients it would be a blow to our very foundation of justice.

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Criminal Charges for Blackwater Guards

Zachary Roth at TPM is reporting on the possibility of Federal Charges for 6 Blackwater guards in relation to a shooting in Nisoor Square. The process seems to be in an early stage such that charges are unlikely. The possibility of actually charging Blackwater contractors for the actions they committed while in Iraq carries significant legal ramifications. It will shed light on an emerging and important doctrine of US foriegn and judicial policy, the extension of jurisdiction of domestic US courts over troops and civilians abroad.

Blackwater is not a particularly popular corporation here in America or abroad. One of the reasons that this is so is that is perceived that they operate with no rules an no oversight and are subject to no law. This makes for a very bad image not helped by the reports of events like the shootings at nisoor square. The damage done to America's reputation is not minor as Blackwater has been employed by the state department to the tune of $1.25 billion. However the department of justice seems to have taken note of the furor over the lack of legal oversight and has slowly begun to create a doctrine for criminal liability of civilian contractors in war zones.

Among the issues under discussion at the Justice Department is whether prosecutors have authority to bring the case. The largest security contractor in Iraq, Blackwater operates in a legal gray area. Its guards are immune from prosecution in Iraqi courts and U.S. law does not normally apply to crimes committed overseas.

To prosecute, authorities must argue that the guards can be charged under a law meant to cover soldiers and military contractors. Since Blackwater works for the State Department, not the military, it's unclear whether that law applies to its guards.

It would be the first such case of its kind. The Justice Department recently lost a similar case against former Marine Jose Luis Nazario Jr., who was charged in San Diego with killing four unarmed Iraqi detainees.

The law referenced in the quote is Military Extraterritorial Jurisdiction Act, passed by Congress in 2000, to address crimes allegedly committed in combat. Its original purpose was to catch soldiers like Nazario that managed to become discharged from the Army and are not in the reserves who are charged with crimes resulting from their time in service.

The relevant statutory language is

Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States [1]while employed by or accompanying the Armed Forces outside the United States shall be punished as provided for that offense. 18 USC Sec. 3261(a)(1).

If we take a plain language reading of the statute then we have to look at whether the contractors charged were with the army at the time of the Nisoor Square shooting. They were not. This leaves the Justice Department in a bit of a bind. They have to hope that the courts take a broad view of what the term "accompanying" means to find that the jurisdiction extends to the Blackwater Guards under 3261. Do not count this broad interpretation out.

What we have going for us is the argument that public policy absolutely supports bringing Blackwater and other civilian contractors under jurisdiction of US courts. No one is above the law or outside the law and yet if the court rejects the interpretation that brings the contractors under US federal court jurisdiction that is what happens. The US mission in Iraq is undercut by having these contractors act without liability. Also, there is the impact on the troops who have to see these guys traipse about the country with immunity. Blackwater already pays better and now they would officially get to operate with criminal and civil immunity.

Another important point is that the Iraqi government is making a very big deal out of gaining jurisdiction over US soldiers for crimes while committed off duty. The ability to punish those who commit crimes in their country is important and showing that the US is willing to punish our citizens who commit those crimes sends a strong clear and positive message. The Iraqi's might not be so determined to gain jurisdiction if they felt that the alleged criminals were being tried and punished as the should be. That would help speed along the SOFA agreement still in the works.

One consequence of finding that US federal courts do have jurisdiction is that the guards would be tried in civilian courts for acts committed in a war zone. The result of the Nazario trial might indicate a general discomfort among civilians to judge the actions of those in a war zone.

"I don't think we had any business doing that," juror Nicole Peters said at the time. She wiped away tears after the August verdict and later hugged the defendant. "I thought it was unfair to us and to him."

This would have the consequence of rasing the level of proof that the prosecution has to meet. The prosecution would have to prove with a certainty that either the situation was not nearly as chaotic or dangerous as might be assumed or that even if it was dangerous that a soldier or security contractor would have been trained and capable of dealing with the danger in such a manner as to nullify it. Both are tough questions to ask of civilian jurors.

Note that this is groundwork is being laid before Obama takes office. Remember that it will not be completed before he does so even if the Bush admin is inclined to pass on this prosecution President Obama will probably be the one staffing the justice department making sure that political considerations do not interfere with seeking justice.

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The End of DOMA

Glenn Greenwald over at Salon has a post on the possibility of Obama working to repeal The Defense of Marriage Act. Many in California, myself included, were simply appalled by the passage of proposition 8. Rest assured that the youth of California has no plans for letting this hang around long term. If prop 8 is not abrogated by the courts i give it less than 10 years before it is repealed by ballot initiative. Until then, the best move for an increase in gay rights is to kill DOMA. Glenn seems to think its possible if not likely and i agree with him.

Here is Obama on his view regarding same sex marriage. Watch all in full if you can and if you may only watch one watch the first one because the follow up is pretty good,







and Biden From the "debate" with Sarah w. Palin,



Other than Alan Keys is crazy, what we can take away from this is that Barack Obama and Joe Biden clearly do not now nor will they ever be a vocal proponent of gay marriage. Obama simply does not believe in it. It is not rationale for us to hold that Obama secretly favors gay marriage but chooses to keep that secret. He is consistent and strong is his advocacy for a civil unions instead of marriage.

What Obama has said is that he is very opposed to DOMA.

Barack Obama has, on numerous occasions, emphatically expressed his support for repealing DOMA. When he ran for the U.S. Senate in 2004, he wrote a letter to Chicago's Windy City Times, calling DOMA "abhorrent" and its repeal "essential," and vowing: "I opposed DOMA in 1996. It should be repealed and I will vote for its repeal on the Senate floor." But he went on to cite what he called the "the realities of modern politics" in order to proclaim (accurately) that DOMA's repeal at that time -- 2004 -- was "unlikely with Mr. Bush in the White House and Republicans in control of both chambers of Congress." After Tuesday, that excuse is no longer availing.

We know that Obama continues to hold these positions because he reaffirmed them earlier in the campaign for president.

"He supports the complete repeal of D.O.M.A. which is the same position he has held since early 2004," Obama spokesman Ben LaBolt told ABC News.

In order for President Obama's positions on Civil Unions to be coherent he must repeal at least part of DOMA. Specifically he must repeal section three which is the provision that expressly forbids the federal government from extending the same civil rights to gays that it does to heteros. This was a position that was advocated by Sen Clinton in the primaries and would allow for the federal government to make real civil unions possible without disturbing the traditional definition of marriage.

To be clear right now Obama and Biden's stated position on civil unions and LGBT rights is not compatable with DOMA. ONe of them has to go and really i dont imagine DOMA is going to be the winner on this one for an important reason. The repealing of doma is a position that Obama did not originally hold when he was running for senate in 2004,

When he began his campaign for U.S. Senate, he told a group called Independent Voters of Illinois -- Independent Precinct Organization that he supported D.O.M.A. He then switched to an anti-D.O.M.A. position on Feb. 11, 2004, as the March 2004 Illinois Democratic primary drew near. According to Obama’s staff, the Illinois Democrat changed positions mid-campaign because he heard from gay friends how hurtful D.O.M.A. was.

Obama presumably continues to have a personal stake in this. The only question becomes "when?" With the economic crisis and the health care initiative and the energy initiatives and the infrastructure projects Obama has a full plate. Will Obama be willing to spend the political capital it will take to get this done with so many other things on his plate? It is clear he might have to fight some of the leadership on this because as Glenn points out,

The conventional Beltway wisdom has already ossified, quite predictably, that Obama and the Democrats must scorn "the Left" and, despite polling data showing widespread support for equal rights for same-sex couples, such a move would be deemed by Beltway media mavens as coming from "the Left." Nancy Pelosi is running around decreeing that "the country must be governed from the middle," while Harry Reid emphasizes that Democrats have received no mandate from the election. And, most significantly of all, Democrats are being told they must avoid the "overreaching" of Clinton's first two years, defined by his attempt to eliminate the ban on gay people serving in the military -- something likely to scare Democrats from touching any gay issues.

Pelosi and Reid are either gun shy or just too clever by half. They are not all that good at playing the rhetorical games with out getting burned. Also keep in mind Obama is not Bill Clinton and he is learning from the mistakes Bill made. He is not going to be pushed around or marginalized like some fear. At the very least he has a very large and impressive email list and voter database that provides massive fund raising potential. The site, change.gov, also allows you to sign up for emails. I can wait to start getting emails from my president with updates on what he is doing for me. This stuff will provide a considerable carrot for those in congress to help Obama out when he has something important he needs to get done. Obama is not without leverage.

In the aftermath of the Prop 8 passage the potential for the end of DOMA is heartening. I don't actually have any gay friends that i am aware of but i consider gay people to be people as equal as any one else in this country. That they should be treated as second class citizens makes me physically ill. In light of this i was happy to realize that Obama's current position is incompatible with the continuation of DOMA and he is on record in favor of repealing it. Hopefully, that change Obama was talking about was a change in treating LGBT people from an oppressed class to full citizens with all the rights and privileges they deserve.

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