Rand Paul’s Wednesday speech at Berkeley decrying the NSA (“What you do on a cell phone is none of their damn business”) serves as the latest reminder of the volatile politics surrounding civil liberties and national security.
On Election Night 2008 amid the euphoria in Chicago’s Grant Park, few Democrats could have predicted that five years later Barack Obama would have continued and even expanded controversial aspects of George W. Bush’s war on terror. Even more shocking to liberal orthodoxy would have been the notion that President Obama’s most vocal antagonist on these issues would turn out to be a conservative Republican senator from Kentucky.
What makes Paul’s journey across this terrain so intriguing is that he is obviously preparing to run for president. And, as I have argued before, the 2016 campaign provides the best arena for a serious effort to dial back NSA’s phone monitoring programming. Of course, traditional ideological fault lines may crack in 2016 if the presidential nominees are Paul and Hillary Clinton, who is likely to defend Obama’s record.
After all, since LBJ left the White House over Vietnam, there has never been a moment when Democratic hawks battled GOP doves. But something cataclysmic like a Paul-Clinton race would probably be needed to reset the stale political dialogue on national security. Traditional arguments between left and right have to be thrown in a tizzy for change to happen with governmental policies on an issue with a high emotional component like terrorism.
Since the early days of the Cold War, the standard Republican critique of the Democrats on foreign policy has been that they are the party of weakness – and their dovish naiveté has supposedly caused everything from Mao’s triumph in China in 1949 to Russia annexing Crimea this month.
That is why too many Democrats (and this group may well include Obama and Hillary Clinton) believe that they never can risk being viewed as soft on terrorism. As a result, Republican cover is needed before anyone other than the bravest Democrats or those with safe seats will push for restoring the civil liberties lost in the wake of September 11.
But there is a current model for how this kind of change occurs – and it is the waning of the crime issue.
Political scientists David Degan and Steven M. Teles pointed out in an insightful article in The Washington Monthly that ideological shifts among Republicans are largely responsible for the recent success in liberalizing mandatory sentencing laws and decreasing the prison population. To many conservatives, in fact, prisons are now defined as a symbol of Big Government. As Degan and Toles put it, “This shift in meaning on the right happened mainly because of creative, persuasive long-term work by the conservatives themselves. Only advocates with unquestioned ideological bona fides … could perform this kind of ideological alchemy.”
The law-and-order issue disappeared so suddenly that it is easy to forget how long fear of crime had been embedded in the American political psyche. In February 1968, crime popped up for the first time in the Gallup Poll as one of the most serious issues facing America. Richard Nixon capitalized on these fears in a 1968 campaign commercial featuring footage of ghetto riots and bloody antiwar demonstrations. Nixon piously declared, “The first civil right of every American is to be free of domestic violence.” That one-minute TV spot ultimately led to the racially tinged 1988 Willie Horton ads by both the George H.W. Bush campaign and a Republican PAC.
Sadly, if it takes as long to dismantle the War on Terror as it has taken to wind down the War on Crime, we may still be debating NSA’s eavesdropping in the 2056 campaign.
But it is worth examining the factors that have belatedly led to a sensible bipartisan consensus on crime – with each party providing the other with political cover – to see if the same pattern can be extended to national security:
A Changed Threat Level: The dramatic drop in violent crime, beginning in the 1990s in cities like New York, has rendered obsolete lines like, “A conservative is a liberal who’s been mugged.”
Relevance to Terrorism: Without a major foreign-planned attack in America since September 11, reality today seems far different than it was in the panicky days when Congress rubber-stamped the Patriot Act.
A Reduced Fear Level: Objective facts do not always eliminate emotionally charged political issues like, say, the Liberal War on Christmas. But fear of crime has so receded from the headlines that there is not even much current polling on it.
Relevance to Terrorism: The 9/11 attacks were such a visceral event that it may take decades for the fear to totally dissipate. But the Boston Marathon bombings do not appear to have had a lasting effect on public attitudes and fear of renewed terrorism. A January poll by Quinnipiac University found that 51 percent of Americans thought that the government’s anti-terrorism policies “have gone too far in restricting the average person’s civil liberties.”
Budgetary Savings: On a state level, many Republicans have backed away from mandatory sentencing and similar tough-on-crime laws because they do not want to spend the money to build new prisons. In short, small government conservatism is trumping law-and-order Republicanism.
Relevance to Terrorism: The implications here are mixed. On one hand libertarian conservatives like Paul want to slash the Pentagon budget to save money and lower taxes. On the other hand, the bulk of budgetary savings would come from areas unrelated to terrorism like planes and ships. The Russian invasion of Crimea also strengthens the argument that any savings from downgrading the War on Terror should be applied to upgrading America’s conventional forces.
Elite Opinion: For the most part (and there are conspicuous exceptions) law professors, criminal justice experts and judges have long expressed skepticism about the political pandering behind mandatory sentencing policies and three-strikes-you’re-out laws. So when the political consensus changed, there was little resistance from academia or the bench.
Relevance to Terrorism: Not as much as you might think. For every New York Times editorial writer calling for Edward Snowden to be allowed to come home, there is a foreign-policy mandarin who believes he is guilty of treason. In truth, there is a broad swath of the national security establishment that is comfortable with current NSA programs and other intrusive federal policies.
State Experiments: Much of the innovation in the criminal justice area has come from governors and state legislators appalled by the explosive growth of prison budgets. Now these successful state experiments are fueling a national drive in Congress to liberalize federal sentencing rules.
Relevance to Terrorism: None.
Marijuana: The end of “reefer madness” on a state level has called into question a whole range of drug-related crimes and sentencing.
Relevance to Terrorism: None.
Demagoguing Politicians: Political decision-making is often governed by fears of being demonized in attack ads. These days, legislators and even governors spend little time worrying that they will be the targets of the next round of Willie Horton ads.
Relevance to Terrorism: This may be the largest obstacle to revamping post-9/11 policies that impinge on civil liberties. The what-if-something-awful-happens factor helps safeguard NSA’s vacuum-cleaner data collection programs, since no one from Obama on down wants to be blamed for another terrorist strike. That is why part of what is needed to dismantle NSA’s over-reach is to convince voters that the programs are as ineffective as they are invasive.
The optimistic message accompanying the fading of the law-and-order issue is that political attitudes can change in America, even during a highly polarized era. But the politics surrounding anti-crime policies also reminds us that it will take a long twilight struggle to restore the civil liberties lost under the guise of preventing another September 11.
Walter Shapiro has covered the last nine presidential elections. Along the way, he has worked for two newspapers (USA Today and the Washington Post), two news weeklies (Time and Newsweek), two monthlies (Esquire and the Washington Monthly), and two online magazines (Salon and Slate). He is also the author of "One-Car Caravan: On the Road with the 2004 Democrats Before America Tunes In," a chronicle of the early skirmishing for the presidential nomination, published by PublicAffairs in November 2003.
Shapiro is teaching a political science seminar on the news media and the 2012 campaign at Yale. And he is working on a book about his con-man great uncle who cheated Hitler.
You can reach Walter Shapiro by email: firstname.lastname@example.org
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The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.