Obama and the myth of the public opinion excuse

The President isn't following public opinion on civil liberties; public opinion is following the President

Published May 18, 2010 10:19AM (EDT)

(updated below - Update II - Update III)

Writing about my post from last week on the diversion of civil liberties erosions from non-citizens to citizens, the University of Massachusetts-Amherst's Charli Carpenter asks what (if anything) can be done to combat this trend:

[I]s it too late for dissent to make a difference? I welcome readers' ideas. I think many voters thought they'd already taken the appropriate step by electing a progressive, pro-civil liberties leader. With the writing on the wall, what now?

In replying to her question, Matt Yglesias attempts to re-direct blame away from Obama by invoking the Public Opinion Excuse

I don't think the answer to her question is particularly difficult -- people who want to halt the erosion of civil liberties need to do a better job of persuading people that the erosion of civil liberties would be a bad thing. If you have an incumbent administration being urged by the opposition to seize more power, and the public wants the administration to seize more power, then you get what we have today. People on the good team are sometimes in denial about opinion on this subject, but read the numbers -- the public wants Guantanamo Bay open, wants suspects tried in military courts, and thinks we should give up more civil liberties in order to enhance security.

Public opinion on these issues is much more mixed than Matt suggests (the very first poll cited in his link shows the public almost evenly divided -- 45-47% -- on whether the alleged Times Square bomber should be tried in a civilian court or a military commission).  And if public opinion were really as clear and decisive in favor of those policies, it's hard to explain how Barack Obama -- who ran on a platform of reversing them, not as a side issue but as a central plank in his campaign -- could have possibly won the election.  But let's assume for the sake of argument that Matt's right about the state of public opinion.  His claim -- that Presidents in general merely follow what public opinion dictates, and Obama is continuing the erosion of civil liberties because public opinion desires that -- is as common as it is mythical, for multiple reasons.

First, Presidents often insist on polices which public opinion rejects.  Bush continued and even escalated in Iraq when large majorities opposed the war, and Obama has done the same in Afghanistan (with less pervasive though, at least at times, substantial majoritarian opposition).  Obama fought for passage of a health care reform bill in the face of overwhelming public sentiment against it, and he favored the Wall Street bailout under the same circumstances.  Obama has strongly condemned, and threatened to take action against, the Arizona immigration law despite widespread public support for it.  Clearly, when a President believes a policy is sufficiently important, he'll insist on it (often successfully) despite public opposition; conversely, when he genuinely opposes a policy, he'll reject it despite public sentiment in favor.  That, I believe, is called leadership.

Second, if Presidents do nothing more than slavishly follow public opinion, then what difference do elections make?  If majority sentiment dictates policy outcomes, then who cares who does the implementing?  

Third, if Matt is right -- that the public favors civil liberties erosions and therefore Obama is eroding civil liberties -- doesn't that absolve Bush and Cheney of blame for what they did?  After all, majorities favored the invasion of Iraq, torture, Guantanamo and related policies; isn't it fair to say that Bush officials were merely following public sentiment? 

Fourth, Matt's argument assumes that Obama really wishes he could restore civil liberties but is simply constrained by public opinion, a proposition for which there is no evidence (and there's evidence to the contrary, beginning with Obama's refusal to reverse Bush/Cheney policies regardless of public opinion, contrasted with his pursuit of other unpopular policies, as well as his early opposition to investigations of Bush crimes even in the face of public support for such investigations).  There are a litany of factors unrelated to public opinion that could easily be driving Obama to do what he is doing, including a fear of alienating the military and intelligence communities and/or a genuine desire for the powers he has preserved and is enhancing.  If that's true, as it appears to be, then favorable changes in public opinion would have little effect on Obama's conduct. 

Fifth, Obama's anti-civil-liberties record has extended far beyond what public opinion has called for.  I don't recall any public outcry for a program to assassinate American citizens without due process, or the invocation of new secrecy and immunity claims to protect Bush crimes from judicial review, or the maintenace of secret prisons in Afghanistan.  One would be hard-pressed to claim that the public even knows about, let alone is agitating for, such extremist policies, yet Obama vigorously embraces them.  He must be doing so for reasons other than public opinion.

Finally, and most important:  this Public Opinion Excuse ignores the substantial agency which Obama possesses in shaping our political debates.  Presidents have numerous tools for influencing public opinion, and Obama has used none for the purpose of fortifying support for the new Terrorism policies he vowed during the campaign to pursue.  He's actually done the opposite:  by advocating for the continuation of so many Bush/Cheney policies, he's weakened opposition to that approach.  In that regard, Matt has it backward:  Obama isn't following public opinion on these questions; public opinion is following Obama.

Our mainstream political debates are invariably framed as Republican v. Democrat.  If neither of the two parties' leadership advocates a particular view, that view will barely be heard (as we saw in the run-up to the Iraq War).  When a party occupies the Oval Office, its position is determined almost exclusively by the President and his administration.  Here, Republicans have been vehement in their demand for the continuation of Bush/Cheney Terrorism policies.  Because the Obama White House has largely been unwilling to engage that debate, and has often affirmatively endorsed the Republicans' central claims, there has been no real "debate" on these issues.  If both political parties are seen as endorsing a particular view (or, at best, if one party is seen as vehemently supporting it and the other party is seen as indifferent or afraid to engage), is it really surprising that public opinion will support the view that is most aggressively and clearly defended?

Even if one assumes that Obama secretly wishes he could do more on the civil liberties front, the problem is of his own making.  How can an administration that endorses and maintains military commissions possibly make a stirring case in favor of civilian courts?  How can a President who repeatedly invokes secrecy to shield Terrorism policies from judicial review possibly convince the public of the need for transparency?  Or how could he possibly persuade Americans of the grave evils of Guantanamo when he himself proposes a system of indefinite detention and merely wants to relocate its defining attributes to a new locale?  Or how could he convincingly justify the need for oversight when he supports oversight-free eavesdropping, detentions and even assassinations?  As is true for any debate, where one side is firm and emphatic in its view, and the other side is, at best, muddled, fearful and largely acquiescent in response, the side that appears to believe in its views and is willing to defend them will easily triumph.

Then there is the even more significant fact that what were once viewed as controversial right-wing, Bush/Cheney Terrorism policies have been transformed, under Obama, into bipartisan consensus.  Whereas the vast majority of Democrats spent the last eight years claiming to vehemently oppose policies such as indefinite detention, military commissions, and secrecy claims, they now actively defend them or (at best) remain meekly silent because it's now their political party, rather than the GOP, that is responsible for them.  By embracing as his own many of the very policies he vowed to uproot, Obama has gutted the core of public opposition to those policies.  Is it really a surprise, then, that public opinion on these questions has worsened under Obama [as but one example, compare the CNN poll on whether Guantanamo should be closed:  before Obama's inauguration, a majority wanted the camp to be closed (51-47%); now, a year into Obama's presidency and yet another year removed from the 9/11 attacks, a large majority (60-39%) wants it to remain open]?

Of course it would be desirable if public opinion more strongly supported pro-civil-liberties policies.  But the reality is that the two political parties have a virtual monopoly on how political debates are conducted, and with few exceptions (such as the Wall Street bailout), if both parties generally support a particular view, then the public will, too, because they will hear so little challenge and opposition to it.  Democrats haven't abandoned civil liberties because the public has; the public (which was clearly prepared to reject the Bush/Cheney approach) has abandoned civil liberties because the Democrats, now that they're in power, have joined the GOP in doing so. 

That's why I believe that the most promising course of action is to do everything possible to force a change in position by the Democratic Party (through primary challenges, intra-party disputes, and vocal criticisms of the President), as well as by making common cause on an issue-by-issue basis with non-Democrats (as Al Gore did in 2006 with his partnership with Bob Barr) when the opportunity presents itself (witness the newfound and extremely hypocritical though potentially useful GOP concern for civil liberties now that they're out of power, a trend that could accelerate with a victory today by the war-questioning Rand Paul in Kentucky over his GOP establishment opponent).  It shouldn't be the case, but the two political parties possess a virtual monopoly on the views that are aired in mainstream public debates. 

To pretend that Barack Obama is a helpless captive of public opinion rather than one of the principal forces which shape it is the opposite of reality.  It would be good if public opinion more strongly supported civil liberties, but as long as Obama joins the GOP in opposing them, hordes of Democrats who once supported such liberties will reflexively follow Obama, making that improvement extremely difficult to achieve.


UPDATE:  In the course of declaring himself an "admirer" of Barack Obama, Kevin Drum explains why the one area where he feels "betrayed" by the President is civil liberties:

[O]nce the U.S. government starts targeting U.S. citizens without warrants or due process, we've crossed a bright line that's dangerously corrosive. That includes the warrantless wiretapping and non-appealable no-fly lists of the Bush administration, and it includes assassinating Americans and removing Miranda protections under the Obama administration. They're outrageous and dangerous transgressions no matter who's doing them, and Obama needs to take a long, deep breath and reconsider how he's handling these issues. In most things, Obama is famous for taking the long view and not letting day-to-day political considerations force his hand. He needs to start doing the same thing here.

One other point that should always be emphasized about civil liberties and public opinion:   a primary reason for these Constitutional protections is to safeguard the rights of minorities, particularly the most scorned segments of society, from oppression supported by majoritarian sentiment.  For that reason, civil liberties is the last cause whose sacrifice can be justified by appeal to public opinion.  As countless historical examples demonstrate, the whole point of those liberties is that they are as vital -- indeed, more vital -- when majorities are eager to trample upon and abolish them in the name of a hated, fear-inducing Enemy.


UPDATE II:  Both on Twitter and here in the comment section, Matt Yglesias objects that he did not intend to express the points I've attributed to him.  At the very top of the post, I re-printed his argument in full, without edits, and I certainly understood him to be arguing (as did many of his own commenters and others) that public opinion is what accounts for Obama's bad civil liberties record, and that the solution is to improve public opinion on these questions.  If that's not his argument, I'm not sure what it is.  I've suggested that Matt elaborate on what he did and did not mean, and will link to it once he's done so.  

In any event, this is an important discussion to have because it is common to hear public opinion cited as an explanation for what Obama is doing (he's politically prevented from being better on civil liberties), even if Matt himself did not intend to make that point.


UPDATE III:  Yglesias has now posted -- to use his formulation -- a "typically" short and undetailed explanation of what he says he meant.  He writes:  "This is what I think: If public opinion were friendly to civil liberties, then public policy in the Obama era would be friendlier to civil liberties than it currently is."  Is that actually supposed to be different than the claim I attributed to him as his central argument ("[Matt's] claim [is] that Presidents in general merely follow what public opinion dictates, and Obama is continuing the erosion of civil liberties because public opinion desires that . . . Matt's argument assumes that Obama really wishes he could restore civil liberties but is simply constrained by public opinion")?  The point Matt now says he wanted to make and the point I attributed to him and then refuted seem synonymous to me.

About that point, Matt asks:  "Does Greenwald really deny that?"  Yes, I do.  That's the whole point of this post:  to contest the claim that Obama's bad civil liberties record is due to public opinion, and that improvements in public opinion would mean that he'd adhere to his campaign pledges in this area:  see, in particular, points 1, 4, 5 and 6, which detail and substantiate exactly why the point Matt says he intended to convey is, in my view, so unpersuasive.

As to whether Matt intended to direct blame away from Obama for these policies and onto public opinion, I'll take him at his word that this wasn't his intent, though it is the effect of his argument (Obama is constrained by public opinion).  My understanding of Matt's view on that question is informed by prior, related arguments he made, such as his insistence that disappointed civil libertarians should look to Congress, not to Obama, for solutions.

By Glenn Greenwald

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