Obama: selling out civil liberties

Barack Obama ‘offers liberal vision’ and calls for ‘progressive values’, the New York Times declares, confirming the left-of-centre assessment of his second inaugural address. Democrats and progressives took heart from his impassioned commitment to civil rights and social welfare while Republicans fumed. Civil libertarians sighed, reminded that progressive values don’t include individual liberty.

Of course Obama paid rhetorical tribute to liberty, as politicians always do, even as their policies assail it. But Kelly Clarkson’s musical paean to liberty seemed more sincere. In the Bush/Obama homeland, when freedom rings, the security state picks up the phone, and not merely metaphorically.

Civil libertarians have been cataloguing and futilely litigating the gross abuses of post-9/11 era for years. They include, but are probably not limited to, summary detention and torture; the prosecution of whistleblowers; surveillance of peaceful protesters; the criminalisation of journalism and peaceful human-rights activism; extensive blacklisting that would have been the envy of Joe McCarthy; and secrecy about a shadow legal system that makes the president’s ‘we the people’ trope seem less inspirational than sarcastic.

Precisely because civil libertarians have focused on these abuses, they’re old news – which means that progressives revelling in Obama’s speech can’t claim ignorance of them. When they applaud the president’s ‘muscular liberalism’, without qualification, they’re effectively applauding his strong-arm security state.

That’s not entirely surprising, given his many nods to important liberal causes (which, in general, I support) and given the tendency of many liberal as well as centrist Democrats to ignore, trivialise or endorse the post-9/11 assault on liberty. When Democratic members of Congress talk about their party’s values, they sound just like the president; they talk about equality, social and economic justice, and immigration reform. They rarely talk about the preservation of liberty.

I doubt that either the president or the Congressional enablers of his anti-libertarian agenda consider themselves the enemies of freedom. Instead, I suspect, they define freedom differently than civil libertarians do.

What are we talking about when we talk about freedom? It depends on who’s talking.

‘Freedom is about authority’, former New York mayor Rudy Guiliani once perversely advised. ‘Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.’ Barack Obama offered an opposing view: Freedom is about equality, he suggested in his inaugural address. It requires a thriving middle class and equal opportunities for lower-income Americans.

When the subject is liberty, the egalitarian left mirrors the authoritarian right. For Giuliani and Obama, freedom isn’t primary; it’s contingent on what they value most – authority and equality, respectively.

Listen, again, to Obama. He talks about freedom as an adjunct to equality: ‘When a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American, she is free…’

His statement is partly true. Yes, poverty can effectively imprison people, and I want an impoverished little girl to enjoy equal opportunity. I want my tax dollars to help feed, clothe and educate her. But neither a good education nor a good job will suffice to make her free – not when she’s subject to ubiquitous government surveillance; not when she’s at the mercy of unaccountable federal prosecutors armed with a vague, voluminous criminal code; not when she can be arrested and prosecuted for indulging in a little victimless drug use (as the president once did), even if it’s legal in her state.

Obama did make at least one passing reference to freedom from state control: ‘We have never relinquished our scepticism of central authority’, he observed. That, too, is partly true, and perhaps it’s why the administration insists that so many of its authoritarian executive actions and interpretations of law must be hidden from us.

‘Preserving our individual freedoms ultimately requires collective action’, he continued. Also true. But the collective action required to preserve freedom – organised political dissent – is precisely the action targeted by the security state. If Obama favours collective action, why does he tolerate FBI monitoring of the Occupy movement? Why does his administration enable and cooperate with local surveillance of peace activists?

When Obama praised collective action in his address, he wasn’t praising efforts by individuals to organise against government abuses; he was praising organised support for government programmes. We can’t ‘meet the demands of today’s world by acting alone’, he proclaimed. We need ‘collective action’ to train our teachers, build our roads and research labs, and support Medicaid, Medicare, and Social Security.

You don’t have to oppose any of these programmes to understand that they do not ensure our freedoms. You don’t even have to be a radical individualist to know that freedom and equality sometimes conflict. When we prohibit employment discrimination, we choose legal equality of opportunity for an employee over an employer’s freedom to discriminate. When we prohibit offensive speech in sexual harassment or anti-bullying regulations, we choose the social equality of presumptively vulnerable groups over freedom of speech.

In my view, laws against employment discrimination guaranteeing legal equality are the right choice. Laws against speech, aimed at ensuring social equality, are the wrong choice. The merits of these choices are matters of opinion, obviously. But the existence of these choices – the occasional necessity of choosing between the respective demands of freedom and equality – are matters of fact. The president is surely smart enough to recognise that fact, but he seems ideologically inclined to dismiss or obscure it.

We also choose between freedom and security, often blindly and in fear. All too often, we choose between freedom and the appearance of security – or we trust the presidents we favour to choose for us. This president, announcing a moderately progressive second-term agenda, can perhaps be trusted with trying to advance equality. But he should never be trusted with freedom. Presidents naturally prefer their power to our rights.

Wendy Kaminer is a lawyer, writer and free speech activist. Her most recent book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) A version of this article was first published at theatlantic.com on 23 January.