Predictably, everyone is unimpressed by the measures Barack Obama has announced to bring a little ray of transparency to America’s surveillance programs. The New York Times editorialized that the president’s proposed changes “only tinker around the edges” of our “abusive” surveillance programs. I wouldn’t argue that the proposals will fundamentally remake the surveillance state. But nevertheless, I think it’s pretty remarkable that a president, any president, announced, without absolutely being forced to, a series of steps that relinquish some degree of executive power. Of course he’ll get no credit for that, because civil libertarians tend to be absolutists and other liberals tend to be afraid or even terrified of their wrath. Why this is so tells us some important things about contemporary liberalism.
First, what Obama said. Don’t get me wrong. I’m hardly jumping up and down that the National Security Agency is going to have a full-time civil liberties and privacy officer. But two of Obama’s other recommendations might have some bite. Reforming Section 215 of the Patriot Act, depending on the definition of the word “reform” that Congress settles on—frightening, as we know—is potentially a big deal. Section 215, which vastly expanded the FBI’s ability to spy on American citizens in a number of ways, has long been the section of the act, or at least one of the sections, of greatest concern to the civil-liberties lobby. It’s under 215 that the government is collecting all those telephone records. Obama wasn’t terribly specific in his remarks on Friday; he just said he’ll work with Congress “to put in place greater oversight, greater transparency, and constraints on the use of this authority.” Even so, it would be the first narrowing of the Patriot Act since its passage.
The idea for having an adversarial presence at Foreign Intelligence Surveillance Court hearings is potentially even a bigger deal. A special court system set up in the United States of America in which the judge hears only the government’s side of the story, FISC has always been a case where a bright line was crossed. It’s. There’s just no way that’s acceptable, and correcting it would end a blatantly (to me) unconstitutional practice.
As I was listening to these remarks, I kept thinking to myself about this paradox. No, they were not “bold and sweeping” proposals. At the same time, it sure seemed to me like this was the first time in my adult life I’d ever heard a sitting president propose checks on his administration that he didn’t have to offer. And Obama didn’t have to offer these. He was facing some political pressure, but polls have been pretty consistent in showing that a solid majority of the American public comes down on the side of what we might call controlled surveillance.
There was no mortal threat to his presidency here. Yet even so, he took a couple steps away from the imperial presidency. I think that’s the first time since the presidency became imperial—after World War II, more or less—such a thing has happened. And Obama was, as he claimed Friday, headed down this course before the Snowden leaks. Those began on June 5. But on May 23, he gave a speech at the National Defense University in which he foreshadowed the moves he just announced. Combine all this with John Kerry’s recent announcement that we have a plan for ending drone strikes in Pakistan, and you might have thought liberals would be cheering.
I suppose some liberals are. I am. But not civil libertarians. With them, it’s all or nothing. If you’re not signed on to the whole program, you might as well be Joe McCarthy. Environmentalists and tax reformers and campaigners for the poor and those fighting for greater consumer protections and even civil rights advocates understand that the political process is about compromise and getting what you can, and they acknowledge that there are such things in this world as competing compelling interests. But you are well advised not to try to mention such things to a civil libertarian.
The reason for their intransigence is that we (liberals) are trained to think of these liberties as being absolute and utterly nonnegotiable. But our history and our civic life shows that they are negotiated all the time. For all the “when one person loses his civil liberties, we all lose them” rhetoric, historically that’s simply not the case. As with anything, there are degrees. The distinguished civil liberties lawyer Burt Neuborne wrote a fantastic piece about all this in The American Prospect in 2005, observing: “When I was national legal director of the American Civil Liberties Union during the Reagan years and the board had sent me out to argue my umpteenth crèche case, I wrote a memo saying that I didn’t take the job to stamp out the Virgin Mary.”
Yes, crèche displays and telephone data mining are different things. But both somehow elicit the same reaction from certain liberal quarters—outrage at this blatant violation, etc., etc. It’s a reaction that reflects an overly legalistic liberalism equating legal wins with factual and moral ones. But here too, history speaks: they aren’t the same thing. Schools were legally desegregated in 1954. They were factually and morally desegregated in much of the South about 20 years later, partially through the courts and partially through moral suasion that changed public opinion. Obama has public opinion to think about. And of course he has keeping the country safe to worry about, and no one at the ACLU is sitting in on those intel briefings and learning the things the president is learning every day about threats to the nation, and no one at the ACLU will be responsible if our wall of security is breached. Obama is responsible, and I think mere willingness of the man in that position to have this conversation, let alone take some concrete steps, does him enormous credit.