How Obama Can Save His Legacy by Reining In the Security State

The president can restore some flagging faith in the American project and shore up his own political fortunes.
Jason Reed/Reuters

People like to say that there are no second chances in American politics. In reality, though, few systems are more forgiving than ours. An American politician must be determined and persistent—a Richard Nixon or an Anthony Weiner—to kick away every chance for rehabilitation that the American people offer. 

This is something for President Obama to ponder as he comes to the end of an unexpectedly difficult year. Despite a smashing reelection and a victory in the government shutdown, Obama’s poll numbers have moved significantly lower, with the greatest loss in the percentage of respondents who consider him trustworthy.

At this year’s end, however, Obama has a powerful opportunity to change how he operates, and how he is viewed. All it will take is what so few politicians have—the ability to listen to the universe when it says, “You were wrong.”

Consider the events of the last two weeks. Judge Richard Leon of the District Court for the District of Columbia, a Republican appointee, held that the National Security Agency’s massive metadata-collection program “likely” violates the Fourth Amendment. (To my students: In the procedural posture of this case, “likely violates” is a lawyer’s code word for “@#$%ing-A right it violates!”) A few days later, the president’s advisory board recommended significant reforms to the extent and structure of the same programs. The tech sector, civil libertarians, a Republican judge, America’s foreign allies, and, I suspect, the vast majority of the American people, now agree that government surveillance has overreached. 

The White House has said nothing about Leon's decision. (A Justice Department spokesman said, “We believe the program is constitutional as previous judges have found,” though it's not clear what judges he's referring to.) After the advisory report, the White House would say only that the president “will work with his national security team to study the Review Group’s report, and to determine which recommendations we should implement.” 

In the months since Edward Snowden’s revelations began emerging, Obama has insisted that, as he said in June, that "Congress is continually briefed on how [NSA surveillance is] conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout." Top intelligence officials and Senators like Senator Dianne Feinstein and Representative Mike Rogers repeat the soothing mantra daily. It’s all legal. The courts know all about it. Don’t worry your pretty little heads about it. Let us take care of you.

The administration’s stance has by now become a kind of fetal crouch, distasteful even to witness. I’m not sure that anyone anywhere outside Washington believes a word of this—or ever has. Even the members of Congress know that we know they’re lying, and know that we know they haven’t been doing their jobs. Obama can may still have a chance to get ahead of the moment by changing his own approach.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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