Thursday, January 5, 2012

Obama, civil liberties, and security

Over at No Left Turns, Bill Voegeli offers a thoughtful response to my Philly Post piece decrying President Obama's signing of the NDAA. I suggested Obama had betrayed the cause of civil liberties; Voegeli sees it a bit differently. If I'm reading it correctly, his argument is two-fold:
The now-bipartisan embrace of once-unthinkable security measures represents a considered response to the terror threat that the United States faces. "National security is a hard, grave business. Candidates who spoke as glibly as bloggers and editorialists about respecting boundaries regardless of the consequences become far less categorical when they're in important positions of national power and must confront just how horrific those consequences might be."

Secondly, that we're at war, and sometimes during war the Constitution is set aside in order to save it. "Drawing the lines and rightly understanding the nation's exigencies is not merely a post-9/11 problem. The most famous example is Abraham Lincoln suspending the writ of habeus corpus - first by executive order, later according to congressional enactment - as secession and civil war consumed the nation in 1861. He defended his actions in a message to Congress: 'The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the [president's] official oath [of office] be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?'"
Let's take the second point first. More than a decade after 9/11, it seems apparent to me that a "war" framework for dealing with terrorism badly serves the United States and its citizens. War, after all, is an emergency: Lincoln had a sense that the emergency would end when he set aside habeas corpus; FDR had the same sense when he gave Nazi saboteurs a kangaroo trial during 1942 and confined Japanese-Americans to prison camps.  Sooner or later, the war would be over—and eventually the excesses undertaken in the national defense would recede into a half-embarrassing history generally understood to be at odds with the longer, stronger narrative of American liberty. It's a pattern that's repeated itself over and over again throughout the country's history.

America has spent more days at war with Al Qaeda than we did enmeshed in the Civil War and World War II combined. There is no end in sight. I have no reason to believe that the "emergency" represented by the War on Terror will end in my lifetime. So the "temporary" excesses—the setting aside of certain Constitutional safeguards—doesn't appear to be temporary at all. It's the new normal, one that is a clear departure from 200 years of an American journey toward greater-liberty.

What's remarkable about the NDAA and its expanded detention powers for government is that it comes at a time when Al Qaeda has essentially been defeated. To use Voegeli's Civil War reference, it's as though General Robert E. Lee had surrendered at Appamattox—and then the federal government decided it was really, really time to get serious about cracking down on insurgents. And it's a further indication that the war will go on forever, even when the men and group that initiated have vanished from both the earth and operational effectiveness.

But there are, clearly, still bad men out there who will try to do bad things to America. Given the current dynamics of American politics and law, as long as there is even one non-state terrorist attempting to harm the United States, we remain at war. Our laws and policies—our Constitution—can be held hostage by a few people with bad intent. That's where we're at. Whatever the deficiencies of the "crime" approach to terrorism, it at least didn't trap us in an unending emergency. To use an old trope: "Tell me how this ends." If you can, I might be more sympathetic to the excesses, knowing eventually they'll end. But nobody really can, and I'm not.

Which leads us to the behavior of the political establishment.

One might see the bipartisan consensus for the NDAA as proof of its wisdom. But one might also take a look at how political incentives have developed since 9/11, where even unsuccessful attack attempts have been used as proof of a president's supposed weakness. The president and Congress have decided they have more to lose, politically, by not being "tough" than they do by being steadfast about America's history of civil liberties. That, of course, means they've judged the American public is more interested in safety than civil liberties.

At some point, I guess, I have to accept that. My viewpoint on these matters probably isn't the majority viewpoint.

But I remain irritated, to say the least, that there are many people in American politics who see creeping tyranny in EPA regulations but are happy to support indefinite detention. Kim Jong-Il, after all, isn't reviled because he made North Koreans fill out paperwork on toxic chemical spills.

And given the eternal nature of the War on Terror, we shouldn't fool ourselves that we're on the same path of liberty that Americans have imperfectly been trodding for a couple of centuries. We're choosing a slightly different path, in the name of security. Most of us might not even notice the difference in our daily lives—we probably won't see the differences except in occasional Pulitzer-winning newspaper stories about how "other" people have been made to suffer—but it will be different all the same. We're not setting aside the Constitution and law in order to save them; we're simply setting them aside.

Maybe we'll be safer. We'll certainly be less free. When the next attack succeeds—somewhere, eventually, it will—the laws will be tightened even further. And so on and so forth, with cries of "freedom" escaping our lips the whole time, even as we forget what we once thought that word meant.

Updated: I misspelled Voegeli's name in the first edition of this post. My apologies.

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