Congress Goes Bipartisan—Against Civil Liberties

The parties collude to defeat accountability for the national-security state

By W. JAMES ANTLE III

Civil liberties are theoretically a bipartisan concern. Conservative Republicans who don’t like Obamacare’s “death panels” should be outraged by presidential kill lists. Liberal Democrats who defend due process ought to be offended by secret surveillance law. Protectors of the First and Second Amendments should have a high regard for the Fourth, Fifth, and Sixth.
Yet restricting civil liberties is what actually commands bipartisan support in Washington. The same Congress that barely averted the fiscal cliff swiftly passed extensions of warrantless wiretapping and indefinite detention, assuring Americans that only the bad guys will be affected but evincing little interest in establishing whether this is really the case.
The same Congress that failed to come up with an agreement to avoid sequestration appears to have bipartisan majorities in favor of profligate drone use at home and abroad. Lawmakers are generally less exercised about the confirmation of likely CIA chief John Brennan than Defense Secretary Chuck Hagel.
At the very time it appears Washington is so dysfunctional that the two parties cannot get anything done, Democrats and Republicans cooperate regularly—when it it comes to jailing, spying on, and meting out extrajudicial punishments in ways that on their face contradict the Bill of Rights.
Senate Majority Leader Harry Reid argued that preserving the Bush administration’s national surveillance program—now for the benefit of the Obama administration—was more important than Christmas. Republican Sen. Saxby Chambliss didn’t even want any amendments.
The Senate overwhelmingly rejected an amendment that would apply the same protections against unlawful search and seizure to emails and text messages that already exist for letters, phone calls, and presumably the carrier pigeon.
Despite deep divisions over taxes and domestic spending, members of both parties tend to sing from the same song sheet about the Patriot Act, the National Defense Authorization Act, and the Foreign Intelligence Surveillance Act amendments.
So much for the Democrats’ bedrock belief in the right to privacy or Republicans’ convictions about limited government.
Civil libertarians are currently a rump caucus in both parties. But they are at least starting to work together. In fact, a critical mass of legislators seeks to use this week’s Brennan vote to extract additional drone memos from the Obama administration.

More promisingly, liberal Democrats like Sen. Ron Wyden of Oregon and Sen. Mark Udall of Colorado have been teaming up with such conservative Republicans as Sen. Rand Paul of Kentucky and Sen. Mike Lee of Utah, seeking to impose real checks on powers the federal government acquired to fight the war on terror—a conflict with no real boundaries or identifiable endpoint.

The core purpose of the Constitution is to balance the powers necessary for the federal government to protect the United States with the need to erect institutional barriers to protect against the abuse of those powers. But in emergencies, constitutional restraints often go out the window and it is difficult to restore them after the fact.

This is especially true when there is no transparency or public accountability. Many details about national surveillance, extraordinary rendition, and even the spending habits of intelligence agencies remain state secrets.

Some level of secrecy is undoubtedly necessary to preserve national security. But giving federal officials sweeping, routinely exercised powers without sunlight or scrutiny is an invitation to abuse. That’s why having even a small group of senators pressing for public information is important.

Eli Lake noted in The Daily Beast, “[A]t a moment when inter-party cooperation is almost nonexistent in Washington, any bipartisan alliance—especially one that includes some of DC’s most committed ideological opposites—is both unusual and noteworthy.”

Lake was referring to the bipartisan alliance between civil libertarian-leaning senators like Paul and Wyden. But until they make legislative inroads, the more usual and less noteworthy bipartisan alliance will be the one that exists between John Yoo and the Obama administration, united by a predilection for virtually unchecked executive power.