The Morning Briefing
On the failures of civil libertarianism

In a wide ranging and deeply personal essay for The American Scholar, journalist Walt Harrington described his two and a half decade relationship with George W. Bush.  Entitled “Dubya and Me,” the essay explores the author’s complicated feelings about the forty-third President, who would become Harrington’s friend despite their political differences.

Street art depicting a Guantanamo Bay detainee. Photo published under a Creative Commons license courtesy of flickr user Walt Jabsco.

I recommend reading the whole piece because I think it captures the complexity of George W. Bush’s personality.  However, I think the President also made an extremely important offhand comment to Harrington that has major implications for American public policy.  He writes:

In the remaining years of his presidency, I visited Bush several more times, always in the Oval Office. He was candid, but nothing like that first night. His only remark about Barack Obama was, as I recall it, ‘No matter who wins, when he hears what I hear every morning, it will change him.’

Civil libertarians ignore this sentiment at their own demise.  Consider, for example, some of the bold pronouncements of the current President in the 2008 campaign.

At the 2007 Take Back America conference:

It’s time for us to close Guantanamo and restore the right of habeas corpus.  It’s time to show the world that we are not a country that ships prisoners in the dead of night to be tortured in far off countries.  That we are not a country that runs prisons which lock people away without ever telling them why they are there or what they are charged with.

In a 2007 speech at the Wilson center in Washington:

I will reject a legal framework that does not work.  There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was nine months. There has not been one conviction of a terrorist act.  I have faith in America’s courts.

These promises and countless others in the realm of civil liberties have been consciously broken.  It turns out President Bush was right, and the things Barack Obama hears every morning have changed him.

Yet, I would be surprised if (pre-2008) constitutional law professor Barack Obama would support the most onerous provisions of the Patriot Act, indefinite detention practices, and the current plight of Guantanamo detainees.  President Obama has been unwilling to make a serious effort to change these policies.  Why is this the case?

The answer may come from an unlikely source.  In The Atlantic’s 150 year anniversary edition David Foster Wallace famously asked whether some things, like the American idea, are worth dying for.  He proposes a thought experiment in which we choose to accept the fact that every so often, despite reasonable precautions, America suffers a deadly attack at the hands of terrorists that cannot be prevented without undermining the laudatory ideals of our democratic society.

He writes:

Is this thought experiment monstrous? Would it be monstrous to refer to the 40,000-plus domestic highway deaths we accept each year because the mobility and autonomy of the car are evidently worth that high price? Is monstrousness why no serious public figure now will speak of the delusory trade-off of liberty for safety that Ben Franklin warned about more than 200 years ago? …

In the absence of such a conversation, can we trust our elected leaders to value and protect the American idea as they act to secure the homeland? What are the effects on the American idea of Guantánamo, Abu Ghraib, PATRIOT Acts I and II, warrantless surveillance, Executive Order 13233, corporate contractors performing military functions, the Military Commissions Act, NSPD 51, etc., etc.? Assume for a moment that some of these measures really have helped make our persons and property safer—are they worth it?

These are questions we have been all too willing to duck, and now we face the consequences.  The Obama administration has made some notable improvements on the record of the Bush administration, but all the important components of the muscular surveillance state have been given a bipartisan blessing over the past three years.

When the country faces minor or failed attacks, like the botched “butt bomb” of Umar Farouk Abdulmutallab, cable news and major newspapers cover the fallout for days as members of Congress and talking heads propose increasingly severe measures to prevent future attacks.

I don’t mean to discount the very real terrorist threat faced by the United States or to sound indifferent to the harm caused by attacks.  Yet, I think we have completely failed in our response to the terrorist threat.  Civil liberties will be protected when we have a serious conversation about the abuses raised in the quote above and the correct path forward. Political leaders with a stated commitment to civil libertarianism will be empowered when the public and media do not resort to utter panic as threats materialize and are analyzed.  The punishment of political leaders as if they are directly responsible for the damage must stop.

In short, I argue that civil libertarianism has failed as an idea, but more broadly that our society misunderstands the correct response to terrorist threats.  Instead of seeing the fallen as victims, we should remember and even celebrate them as martyrs for freedom.   In this lies the hope for a rejuvenated civil libertarian movement in the United States and a renewed appreciation for Ben Franklin’s famous dictum.

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