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.
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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.

Obama, a former constitutional-law professor, was elected as a civil libertarian who would tame the post-9/11 security state. In the first year, he tried gamely to close Guantanamo. Over the past year, he took a tentative stand in favor of an eventual repeal the 2001 Authorization for the Use of Military Force, putting an end at some point to our state of endless war against nameless enemies. But he seems also to have learned that more surveillance, more secrecy, and broader unreviewable power are the ways to please official Washington. His administration has embraced over-classification of information, wholesale attacks on press freedom, and use of the criminal law to intimidate whistleblowers. He sounds more and more like Leonid Brezhnev defending the invasion of Afghanistan. And now this gifted communicator has now lost the initiative to the likes of Larry Klayman. 

To paraphrase Talleyrand, this unseemly spectacle is worse than a crime—it is a mistake. This is Obama’s second term. He is in a position to switch from soothing nonsense to serious discussion of security, freedom, and danger. It is not enough to say that these questions involved unseen tradeoffs that cannot be discussed; a free people can be trusted to make public choices. 

Many Americans apparently believe that Obama is a Hitler-style tyrant. Viewed objectively, this administration has been remarkably timid overall—hesitant to try strong economic or social medicine. But the idea of tyranny is powerful, I think, because of the hangover of 9/11 and the Bush years. American conservatives, against their better judgment, embraced detention camps, secret prisons, torture, classified courts, mass eavesdropping, suspension of habeas corpus, and the Patriot Act when their leader was in control. They lost faith in Bush, and then they lost control of government. Progressives criticized Bush, but held their fire when Obama did not renounce the security state. 

Now everyone feels afraid, and well we might. I think Obama is a man of humane instincts, and one who does respect the law. But if his legacy is a secret, lawless complex of aggressive spies and secretive jailers, who is to say that they will not be misused by a successor? Whether headed by friend or foe, government is, to steal a phrase from Robinson Jeffers, a clever servant but an insufferable master. When we are told that we may not know what it is doing to us in our name, we are right to fear.

This is no legacy for a man of Obama’s values. He is uniquely qualified to lead a national debate about security and privacy—and by so doing, he would show that the people are still part of the process of government in this country, even in dangerous times. 

He still has time to turn the debate around—and perhaps salvage what remains of his second term in the process. 

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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, and is the author of American Epic: Reading the U.S. Constitution.

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