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The Problem For Civil Libertarians

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Like Glenn, I’m dismayed by polling showing widespread support — including among Democrats and liberals — for arbitrary executive power in the “war on terror.” But I take somewhat different lessons from it. Glenn sees this as above all as evidence of tribalism — that liberals only oppose violations of civil liberties when a Republican is in the White House. While I’m sure that partisan considerations affect popular support for these actions at the margin, I think the primary issue is somewhat different and much more disturbing: namely, that civil liberties don’t just have a strong political constituency no matter who’s in the White House.

If this were primarily about tribalism, then one would expect Democrats to rally strongly around Obama when he took a position more civil libertarian than the status quo. But, to put it mildly, this didn’t happen. When Obama tried to close Gitmo, not only was this unpopular with the public, but the Senate vote blocking it was 90-6, not just some conservative Democrats collaborating with Republicans. A lot of blue-state senators, at a minimum, believed that preventing the president from closing Gitmo wouldn’t extract any political cost, and of course they were right. The expenditure of political capital to try to give Khalid Shaikh Mohammed a civilian trial is a similar story — unpopular with the public as a whole, and finding himself without support either in Congress or with politicians in New York (including the Democratic governor.)

It’s easy to forget this if you spend a lot of time online, but people strongly committed to civil liberties are a minority among liberals, let alone the population as a whole. This is the central reason why the number of modern presidents with good records on civil liberties is “none”: the lack of a constituency for civil liberties means that presidents can (within reason) only pay a political price for being too protective. Presidents can’t even count on the support of their own partisans when they try to protect the rights of unpopular minorities or individuals. This absolutely doesn’t mean that presidents don’t have substantial discretion and especially doesn’t mean that the actions of presidents that violate civil liberties shouldn’t be criticized — civil libertarians should do what they can — but this is the political landscape we’re dealing with.

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