by Michael Dorf
My new Verdict column discusses some parallels between the Bush Administration's post-9/11 detention policies and the reaction of various governors to the perceived Ebola threat. The core claim is that in both contexts, government officials relied on very old precedents without paying adequate attention to how modern civil liberties law appears to have overtaken those precedents. I conclude by noting that even though this meant that the Bush Administration suffered some setbacks in the SCOTUS, in the end the government was given broad deference. Tentatively drawing a parallel with Ebola, I suggest that grossly restrictive Ebola policies will be struck down but that merely unwisely over-restrictive policies will remain in place unless public opinion turns against them.
That concluding note leads me to wonder whether Ebola fears had much of an impact on the midterm elections. There certainly were multiple efforts by Republicans to capitalize on such fears (e.g., in Minnesota), and exit polls indicated that a majority of Americans had followed the Ebola news but only 44% think the federal government is doing a good job on the topic. At least that's according to CNN. ABCNews had 44% disapproving but 50% approving. I can't tell from the stories whether one of these sources just reported it backwards (and if so which one) or whether they conducted separate polls and got different results. Meanwhile, I have a hard time believing that Ebola was a decisive issue for all that many voters. A WaPo exit poll did not ask about Ebola specifically. It revealed that of the 25% of voters who rated health care the number one issue, 60% voted Democratic, meaning that Ebola probably didn't count as health care for most respondents. Perhaps Ebola counted as foreign policy, although only 13% of voters who rated that the top issue; they favored Republicans by 10 points.
In any event, it's pretty clear that to the extent that Ebola fears had an impact on the election, they aided Republicans. At the risk of stating the obvious, I'll note that in a rational world, it wouldn't necessarily have worked that way. But first, I'll acknowledge the obvious dynamic at play: People are worried about getting Ebola; they assume (correctly) that, other things being equal, Democrats will worry more about civil liberties than Republicans will; so they vote for the Republicans figuring that the Republicans will crack down with tough quarantines and other measures.
The same logic works in national security cases. I recall talking with an otherwise moderate-to-liberal law professor shortly after 9/11, who said something like this: "I voted for Gore but in a crisis like this I'm glad that Ashcroft is Attorney General because he'll take no prisoners."
In both contexts, the logic is flawed. The problem isn't simply that right-wing politicians who want to "get tough" on Ebola/al-Q'aeda under-value civil liberties for the sake of civil liberties (although they do). The problem is that get-tough policies can be counter-productive.
In the Ebola context, the worry is that 3-week quarantines for asymptomatic American health workers returning from aid missions to west Africa will deter a substantial number of such health workers from going in the first place, which will in turn undermine efforts to fight Ebola in west Africa, which will in turn lead to a worse outbreak there, which in turn will put more Americans at risk because of the inevitable contacts through the rest of the world. So, the argument goes, even if we only value American lives, the overly restrictive quarantines are bad policy.
A similar dynamic operates in the national security context, both domestically and internationally. Domestically, the worry is that crackdowns lead Muslim Americans (and others) to mistrust the authorities and thus undermine the cooperation needed to identify potential threats. Internationally, the worry is that aggressive foreign policy begets blowback.
My claim is not that one should always favor the claims of civil liberties over the claims of security (from disease, armed attack, or whatever). It is a complex question in any given context whether additional "tradeoffs" between security and liberty end up sacrificing the latter while actually undermining the former. My point is only that there is usually more political advantage in campaigning for office on a policy of getting tough than on a policy of avoiding counterproductive sacrifices of civil liberties.