Let us stipulate, as lawyers like to say, that President Obama has a deplorable record on civil liberties, one that threatens long-term damage to the country’s constitutional culture.
Why, then, has his base of support not been eroded decisively? Why have so many on the left fallen silent, after railing against George W. Bush’s rights violations, as Obama has prolonged and codified most of the same practices? And why have so few on the right, riding a groundswell of resentment toward big government, failed to resent the biggest governmental intrusions into personal privacy since the FBI’s domestic spying during the Cold War?
The facts are not in dispute. While Obama has ordered an end to CIA kidnapping and torture, he has personally approved kill lists containing the names of American citizens to be targeted by drones. While he has tried to move the accused masterminds of 9/11 and others from Guantanamo to civilian courts (only to be blocked by congressional Republicans), he has also embraced military commissions and indefinite detention. He voiced misgivings about a bill subjecting suspected terrorists to military arrest — whether foreigners or Americans, whether in Afghanistan or Alabama — and then signed it into law.
In practically every significant court case, his administration has argued for an expansive encroachment on individual rights, much as the Bush administration did. Obama’s Justice Department has successfully opposed the habeas corpus petitions of Guantanamo prisoners, persuading conservative judges to rule in one case that sketchy, unverified intelligence reports must be presumed correct. This absurdity has now entered case law as an erosion of the venerable right, dating from the Magna Carta, to summon your jailer before an impartial magistrate.
The administration has continued undermining the Fourth Amendment. It argued in the Supreme Court, unsuccessfully, that law enforcement should be free to attach GPS tracking devices to vehicles without showing probable cause and getting warrants. It has vigorously used a tool that Obama denounced in the 2008 campaign: the administrative subpoenas known as National Security Letters, which are issued without warrants to acquire the library, Internet, banking and other records of individuals suspected of nothing at all. His Justice Department has invoked state secrets, as did Bush’s, to deny wrongfully imprisoned and tortured victims the right to sue the government. The administration has sought broad immunity for Secret Service agents and others in law enforcement who arrest people exercising their First Amendment right to speech.
Obama’s solicitor general has just made a catch-22 argument before the Supreme Court that could exempt from constitutional challenge the law that authorizes the interception of Americans’ international communications without probable cause — the Foreign Intelligence Surveillance Act, broadened in 2008 with Obama’s vote as senator. Because the surveillance by the National Security Agency is secret, his administration argues, there is no way for the lawyers, journalists and rights organizations who suspect they are being monitored to prove that they are, in fact, targets of surveillance, and therefore they have no standing to sue.
These acts aren’t deal-breakers for many voters, except among a small number of civil liberties advocates, such as Conor Friedersdorf of The Atlantic, whose blog “Why I Refuse to Vote for Barack Obama” deplored the left’s lack of outrage. Other liberals, seeing a constellation of social and economic issues, don’t want to damage Obama’s re-election chances by speaking out. He’ll probably get the votes of most lawyers for the ACLU, which has criticized him persistently. And his judicial nominees will be more liberal than Mitt Romney’s. So there is no opportunity for principled voting. Without a civil liberties candidate with a chance to win, pragmatic balloting is unavoidable.
A symmetrical silence about Obama’s rights policies afflicts Republicans. They worry that government is too big when it funds programs for the poor but not when it funds wars. It is too big when it regulates business but not when it regulates individual lives. It can decide whom people may marry, restrict women’s control over their pregnancies and evade the Fourth Amendment by invading Americans’ privacy. Only true libertarians seem to care.
But there is more here than hypocrisy. Terrorism remains a threat, as the FBI repeatedly reminds the country with sting operations that lure hapless wannabes into dramatic plots they couldn’t execute without undercover agents. Each arrest stokes the public’s fear. Furthermore, rights violations are largely clandestine and invisible. Their targets are “others,” meaning foreigners, terrorists, common criminals and various people not like “us.”
Ten years after the 9/11 attacks, polling by the AP and the National Opinion Research Center found that those surveyed supported, by 65 to 21 percent, a government policy to read, without warrants, any emails to people inside the U.S. from countries known for terrorism. By 48 to 37 percent, respondents favored warrantless monitoring of U.S. citizens’ Internet searches “to watch for suspicious activities,” not further defined. In other words, I’m willing to give up your rights for my security.
It’s not generally understood that constitutional rights are not divisible, that those denied to others, including suspected terrorists, are also denied to “us.” For example, Ernesto Miranda of the Miranda warning, who secured our right to silence during police interrogation, was not a model citizen. He had a long record and had kidnapped and raped a mentally defective teenager. Yet his right now belongs to us all.
A certain appreciation of constitutional law is required to grasp what has happened under the Bush and Obama administrations, and neither the press nor the school system educates well on these issues. It has been widely noted that global warming went unmentioned in the presidential debates, but hardly anyone has observed that both poverty and civil liberties (and the Supreme Court) were also ignored by the candidates and moderators.
It took a comedian, Jon Stewart, to raise Bush-era surveillance policies with Obama, on The Daily Show on Oct. 18. “We have modified them,” the president said. “Now, they’re not real sexy issues.”
Stewart replied: “You don’t know what I find sexy.”