Saturday, June 15, 2013

Political risk in an indefinite state of fear

What happens when you give an executive sole responsibility and blame for a nation's security: Hobbes wrote that "every sovereign hath the same right in procuring the safety of his people, that any particular man can have in procuring the safety of his own body."
I'm surprised that, out of all the commentary I've seen on the news about NSA surveillance programs, no one has made one basic observation about the politics of balancing security and rights. (Maybe someone has, and I just haven't seen it.) But it seems to me that the political consequences of a preventable terrorist attack occurring during one's Presidency are far worse than the consequences of violating citizens' Fourth Amendment rights. Until this state of affairs is reversed, any executive has much greater incentives to prioritize security over civil liberties than vice versa.

The political calculation for a given President looks like this. On one hand, let's say that you devote significant resources to national security, but nevertheless, a 9/11-scale terrorist attack happens during your Administration. An inquiry after the fact concludes that the attack was preventable, but only by means of intelligence-gathering programs that your Administration inherited from its immediate predecessor and chose to shut down on legal grounds. Now, however, your Administration and party—and you personally—receive almost all blame for letting a major attack happen on their watch. You will be forever tarred by history as the President who let "a second 9/11" happen. No one will remember anything else about your time in office. If you are in your first term, this spells near-automatic electoral defeat.

On the other hand, you can stretch the limits of the Constitution. You can probe the outer technological limits of protections against search and seizure, and the "right to privacy" as it has been constructed over the course of the past 120 years or so, and if your wager pays off, there will be no second terrorist attack. You may suffer the embarrassment and opprobrium of such operations becoming public, but the electoral consequences are not as bad as they are in the case of an attack, nor is the damage to your own reputation as irreparable. Moreover, it is uncertain whether your actions are, strictly speaking, actually unconstitutional or not.

From the perspective of any President, the worst-case scenario in the former is worse than the worst-case scenario in the latter. Even if a major terrorist attack is truly unavoidable, it looks better to have exhausted all possible options than to be blamed after the fact for not doing so. Anyone who thinks otherwise wasn't paying attention to the critical remarks of Republican politicians after the Boston Marathon. The political considerations are so overwhelming that they can force the hand of a former constitutional law professor once he enters office. No number of oaths to protect the Constitution can hold up for very long against these odds.

Hand-wringing won't do anything. It's even unclear whether challenging intelligence operations' legality would result in their being overturned. As long as the underlying political incentives, after 9/11, point towards security as the highest priority, every single President of every party and ideology will have a reason to push as hard toward security, even if it means trespassing the murkiest edges of the definitions of various civil liberties. This is, I think, what the President was getting at when he said that "we have to make choices as a society... It's important to recognize that you can't have 100 percent security and also then have 100 percent privacy and zero inconvenience."

There are two conceivable ways we could change this state of affairs. In one, the national electorate could make it clear that the political consequences of violating Fourth Amendment rights are worse than those of a major terrorist attack happening during one's tenure of power. In other words, the situation would look very different if people—and lobbyists—cared as much about the Fourth Amendment as the Second. We like to imagine that this is possible—that Americans care so much about civil liberties that they are willing to rise up and overturn anyone who infringes upon them. But this is demonstrably not the case (though brushing up against them might cause enduring resentment). If it were, the ACLU would hold as much political clout as the NRA, which it does not. The American mentality looks a good deal more Hobbesian in the face of danger than the beliefs and myths of our own culture would like to allow.

The other way we could change things is by immunizing politicians—especially Presidents—from political consequences for terrorist attacks. This would involve placing a good deal more oversight and responsibility for national security in the hands of Congress rather than the executive branch, and making as many of those conversations open-door as possible. We would have to rewire at least some of the lines of accountability for our national security apparatus through a different branch of government. It is likely that they would become slower-moving and less effective as a result. And we would have to abide by the consequences of that choice. But this seems more feasible and likely to me than the first, popular-opinion-based option, if still somewhat unlikely.

Moreover, it elucidates the original sins behind this whole mess: first, that Congress gave broad powers with little public or Congressional oversight to the executive branch in 2001, under the Bush Administration; second, that the Obama Administration, in reauthorizing the whole thing, never gave the public a chance to engage in a referendum on the matter. Castigating individual Presidents won't change anything, however. In fact, in order to stop Presidents from subverting and circumventing civil liberties as they are normally construed, we have to be willing to stop blaming Presidents for any and all domestic terrorist attacks that might happen while they are in office.

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