The Civil Liberties Primary: What Issues Matter Most?

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Voters should prioritize executive power and privacy in 2012, a high-ranking staffer at the ACLU says 

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Which issues should civil libertarians prioritize as Election 2012 approaches? In order to find out, I spoke with Michael W. Macleod-Ball, the chief of staff in the ACLU's Washington, D.C., office. His role at America's most influential civil liberties organization: managing a staff of policy advisers and lobbyists who interact with Congress. In doing so, he's tuned into all federal policies with civil liberties implications. The issue he deems most important at this moment in history: "The aggregation of power in the executive branch."

Along with advances in technology that enable authorities to monitor citizens in unprecedented ways, he believes that the balance of power between the executive and legislative branches ought to be "the predominant issue in the 2012 election." In the nearly ten years since the September 11 terrorist attacks, the ACLU has taken specific stances on issues including torture, extraordinary rendition, watch lists, the PATRIOT Act, surveillance, and the rules that govern what it means to provide material support to America's enemies. What most of these issues have in common, Macleod-Ball says, is that "there doesn't seem to be any motivation to take up oversight in Congress, and there's certainly no inclination that they're going to legislate in those areas to restrict the activity of the president."

That concerns him more than any single issue.

"The three branches have been battling one another throughout our history," he says. "It's like rock paper scissors. And it's sort of like the scissors have decided they don't want to play anymore."

If the ACLU had its way, Congress would restrict the ability of law enforcement to spy on Americans with no connection to terrorism, overturn some of the authority granted to the federal government in the PATRIOT Act, restrict the use of National Security Letters -- a PATRIOT Act provision that "radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies" -- and quash both the "Internet kill switch" and a proposal to make it easier for the authorities to see what we do online.

With regard to torture, Macleod-Ball credits the Obama Administration for issuing an executive order prohibiting it, but points out that the next president could merely lift that order and resume tactics used during the Bush Administration. Congress should legislate on the matter to make the legal prohibition against those tactics clearer, he said. "We're seeing a similar abdication of responsibility with regard to the war powers act when it comes to this Libya situation. It just keeps happening over and over and over again that the legislative branch is seeding its place at the table."

Is there any action the Obama Administration could take to quickly improve its appeal to civil libertarians? "When they came into the White House there was a lot of talk about how they were going to reform the use of the state secrets privilege," he said. "In fact, they announced a procedural change they were going to follow. But in practice, they've continued along almost exactly the same lines as the Bush Administration," using the doctrine not just to exclude discrete bits of evidence from trials, but to get entire cases excluded from the American judicial system.

"They have the authority to change that right now," Macleod-Ball said. "But I'd be surprised if they did."

He hopes that during the GOP primaries, a debate moderator asks the candidates to reconcile their professed concerns for constitutional rights with measures most contenders have supported in the War on Terrorism. "It's easy to talk in platitudes about liberty, but when you're  giving the Department of Justice the authority to pry into the lives of individual Americans who have no connection to terrorism, how do you square those two things?" he asks. "You can't  come down on the side of national security in every instance and still say that you give priority to the rule of law and Constitutional rights."

Ideally, 2012 voters would pay more attention to the privacy rights they've given up, Macleod-Ball says, and the candidates they elect would work to remedy the situation. But he isn't optimistic. "When Democrats are in control, they don't want to suggest that a Democratic president isn't as strong as he could be on some national security issues. And when the Republicans are in charge they don't want to allow the administration to show that they are muscle bound on some of these issues."

Meanwhile, almost all members of Congress are more concerned with seeming "tough" on terrorism than conveying to voters that they're zealous in protecting and defending civil liberties.

Even prior to 9/11, the ACLU concerned itself with excessive executive power and privacy rights. It is still notable that a high-ranking member of the organization deems these issues so singularly important as a presidential election approaches. The text of the Constitution and the Federalist Papers presume that abuses of federal power will be prevented mainly through the separation of powers. The expectation was that officials in all three branches of government would zealously guard their power, and even engage in overreach (hence the need for checks and balances).

It is fitting that all these years later, Congress' dereliction of its duty is of primary concern to the country's leading civil liberties organization. In future entries in this series -- The Civil Liberties Primary -- I'll take a look at what other civil liberties organizations on the right and left have to say.

Image credit: Jim Young/Reuters

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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