Monday, November 27, 2006

Will/Should the Democratic Congress Have a Civil Liberties Agenda?

After unsuccessfully ignoring the Iraq war in 2004, a great many Dems successfully ran against the war this year. There was something missing, however. Admittedly, I didn't watch every last snippet of coverage, but in what I did watched I saw no mention whatsoever of what might be called the "civil liberties" issues raised by the Iraq War (think Abu Ghraib) and the broader "war on terror" (think Gitmo and domestic electronic surveillance). Because I generally trust that politicians have a better sense of what will and won't play to public opinion than I have, I suspect that the absence of a civil liberties agenda in the recent campaign reflects the view of the American people that it's worth sacrificing some liberty and privacy for increased security, especially if the people doing nearly all of the sacrificing are aliens and other "others."

To be sure, it is not clear what a Democratic Congress could actually do on these fronts, even if it wanted to. If Congress passed a bill that substantially amended the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, Bush would likely veto it. And as to domestic surveillance, FISA already pretty clearly prohibits it. The Administration's argument is that the Authorization for Use of Military Force (AUMF) of September 2001 activated the President's supposed inherent wartime authority to engage in all manner of surveillance, notwithstanding FISA. That's a very weak argument, but again, should Congress attempt to remove all doubt by passing a bill making clear that the AUMF did not override FISA, Bush would likely veto. So the most Congress can do on these fronts is to hold hearings.

But I'm not even persuaded that they'll do that much, if I've rightly understood the official read of the public mood. If so, that's unfortunate, because I think the public is movable on this front. The distinction between "terrorists" and "millions of law-abiding citizens, a tiny handful of whom may or may not be linked in some way to suspected terrorists" should not be all that difficult to make clear. And on detainee treatment, I actually think that the public is uncomfortable with the idea that the U.S. routinely uses "harsh forms of interrogations." How else to explain the constant misdirection by the Administration? The public proclamations that we don't torture, the use of euphemisms, and the minimization of techniques we actually admit to using (e.g., calling waterboarding a dunk in the water) all bespeak a reluctance to say what the Administration actually supports, for fear, I think, that the public would disapprove. So I would urge the new Democratic Congress to have the courage of its convictions, if only I were persuaded that a concern for civil liberties is among the convictions of a majority therein.