The Liberty-Security Tradeoff:Virtually Everyone Accepts that Liberty Should At Times Be Sacrificed for Security, So Why Won't Progressives Propose How and When?

By EDWARD LAZARUS
Thursday, Feb. 02, 2006

As President Bush launched his ongoing campaign to defend his controversial domestic NSA spying program, a group of students in Philadelphia staged a carefully orchestrated, highly publicized protest centered around a banner bearing a quotation from Benjamin Franklin: "Those Who Would Sacrifice Liberty for Security Deserve Neither."

I wanted to cry. President Bush is vulnerable on the domestic spying program. The legal justifications the Administration has so far offered are almost laughably weak. The public has grown distrustful of the Administration. And it is likely that Congressional hearings soon to begin will show that the program is not only unlawful and overbroad, but ineffectual as well.

However, if progressives think they are going to significantly dent the President's armor with 250 year-old quotes about the sanctity of liberty, they might as well accept defeat in 2006, 2008, and for elections as far as the eye can see.

If more than 5% of the American people really believes that we should not engage in some trade-off of liberty for security (as the banner quote would have it), I'll eat a printout of this column.

Look at the popularity of the TV show "24" -- where torture by American counter-espionage agents is a routine tool in the fight against global terrorism. This torture, notably, is hardly limited to terrorist masterminds: Just last season, the Secretary of Defense's son faced torture by his father's colleagues because he was withholding useful information, not because he was a suspect of any kind. He withheld information only because it seemed irrelevant to him, and would have revealed to his father that he was gay. Even in circumstances like this, "24" presents, and America seemingly accepts, the torturers as heroes, even when the victim is no terrorist.

The truth is that the overwhelming majority of Americans accepts the basic idea that the world has become more dangerous and unstable, and that our thinking about rights such as the right of privacy - classically described as our "right to be left alone" -- must be reviewed in that unfortunate light. After all, no one thinks we have a right to be left alone, in peace, as we are planning a terrorist attack.

Pretty much everyone I know would gladly trade some liberty for meaningfully greater security - and not a one of them thinks they deserve neither. The question is which tradeoffs should be made, and when.

Misunderstanding Ben Franklin: He Valued Security, Too

Ben Franklin, of course, understood this. His actual quote, as I understand it, reads: "Those who would give up an essential liberty for temporary security deserve neither liberty nor security." Now, that gets to the heart of the matter. The question is how much liberty (and of how precious a nature) is to be sacrificed for what degree (and duration) of security. But that critical nuance finds no place in the students' protest banner, which proclaims an ideal that falls flat as a pancake in a world of suicide bombers, nuclear proliferation, and other weapons of mass destruction.

It is tempting, of course, simply to shrug off the Philadelphia protest as the ill-conceived hijinks of some overwrought campus activists. But the larger problem for progressives is that so much of what they say regarding politics and law sounds quaint, dated, or just plain lame.

And that's why, despite unconscionable illegality and perfidy and incompetence, Bush is still winning almost every political battle that really counts - including, most recently, the Alito nomination -- and why his party might yet escape unscathed come fall.

The Credibility Gap: Why the Public Doesn't Believe Democrats Truly Value Security

As I see it, progressives suffer from two basic problems. The first is a credibility gap on certain key issues. And the second is their failure (perhaps I should say our failure) to develop a new vocabulary for articulating core principles.

To begin with the credibility gap, I think most people in the center of the political spectrum just do not trust what liberals have to say on the issues of national security and personal morality. And since those are the very voters on whom elections hinge, their mistrust is very significant indeed.

Take national security. When discussing issues like whether to renew the Patriot Act, or what the legal status of the NSA's domestic spying program is, Democrats try to send the message that they care about catching terrorists every bit as much as the President does, but that the legislation at issue gives the executive branch too much authority to invade the privacy of individual citizens.

There is nothing intrinsically wrong with this message. Quite the opposite. But I don't think most people buy it. And the reason they don't is that Democrats have failed to establish the bona fides necessary to support their claim that they do, in fact, care about national security as much as the swaggering President who talks tough to them at every turn.

Truth be told, the Democrats don't have much of a track record when it comes to national security issues. They are uncomfortable projecting American power.

That attitude led to an unconscionable failure to intervene in the Rwandan genocide. And it led to weak responses to terrorist strikes in the Clinton years: How much our history might have changed if, rather than lobbing a few missiles at bin Laden's camps and then ignoring the issue, the President had cleaned the camps out, and captured and tried bin Laden and his lieutenants! In that event, military force would have led to not only greater security, but also greater liberty: The compromises our free society has made, might not have come about.

It also led to Democrats' opposition to the invasion of Iraq even when it was thought by many that Saddam indeed possessed, or was on the verge of possessing, WMD. Yes, these claims turned out to be lies; the skeptics were right. But if they had been true - if there had indeed been a Saddam/al Qaeda connection, and if he had indeed been funneling uranium, or the kind of chemical and biological weapons that can kill thousands or tens or hundreds of thousands of people, to al Qaeda - I am still not sure most Democrats would have supported the war.

Why The Public Doesn't Buy Democrats' Criticisms of the NSA's Domestic Spying

The current debate over the NSA spying program illustrates the problem. In the last few weeks, a number of generally progressive thinkers have taken to the Op-Ed pages to argue that, while the President clearly overstepped his legal authority in conducting the wireless wiretaps, the idea behind the program - that we need to be using the tool of data mining to fight the war on terror - is basically right.

Okay. But this simply begs the question of why progressives weren't out front on this issue a long time ago, advancing their own legislative program for conducting data mining in a way that carefully balanced the competing imperatives of privacy and security.

While it now appears that some Democrats approached the Administration to discuss this issue in the wake of 9/11, apparently none of them advanced an actual program for fighting this front of the terror war. If they had, Democrats would have a lot more credibility complaining in the current debate over presidential authority.

The need to wiretap suspected terrorist communications was a widely-acknowledged problem. The Bush Administration addressed that problem, via the NSA. It's very easy to criticize the solution, which is based on blatant lawbreaking. But is and much harder to come up with specific, effective solutions that preserve liberty insofar as is possible, yet address security concerns too. Such solutions are exactly what Democrats should have offered.

The Empathy/Affinity Gap: Democrats' Failure to Address Most Americans' Values

The issue of "values," which played an important if still somewhat undefined role in the 2004 election, has played out in similar fashion - and will predictably continue to do so, if progressives don't change their approach.

Too many Democrats - John Kerry comes immediately to mind - just don't connect with exurbanites when it comes to their concerns about pornography, abortion (especially for their kids), religion, and popular culture. The Kerrys of the world just don't seem sincere (even if they are) when they claim empathy with this group's views.

And are these views really so hard to empathize with? Parents who want their kids to put off having sex until they are responsible enough to handle it, and to attend a house of worship weekly, are not the enemy. Nor are people who start to question second-trimester abortion, especially in light of modern early-ultrasound technology.

But from progressives' rhetoric, one might think so. Progressives imply not just that they don't like public funding for religion, but that they don't like religion, period. They also imply that anyone who doesn't favor the right to abortion through the ninth month is a monster and a misogynist.

To be sure, there is a line to be drawn between establishing credibility with the cultural centrists who dominate the electorate, and abandoning core principles. I'm not suggesting that Democrats suddenly abandon the right to choose, or other core principles.

But rhetoric alone will not convince this voting group of progressives' empathy and affinity with their values. This trust is won only through actual initiatives that speak to their concerns - and Democratic proposals of this nature are few and far between.

As a result, Democrats can declare all they want that they are as committed to middle-American values as the Bible-thumping President, but most folks don't believe them.

Bill Clinton was a master at solving this problem. In addition to his preacher's way of talking to religious people, he put forward small but meaningful ideas, like the V-chip or school uniforms, to help parents protect their children from the least savory aspects of popular culture. Tipper Gore did the same with her crusade to put content-warning labels on music.

Hilary Clinton has tried the same strategy, far less artfully, with her purely symbolic proposal to protect the American flag. But the idea, at least, is right - to get out front on the issues of values and patriotism so that progressive voices will be believed when they sound a warning cry.

Progressives' Lack of Winning Themes: Security Is Not Merely a Conservative Issue

Credibility, of course, only gets you so far. Progressives still need a message that resonates. And on this score, too, we have fallen short.

Whether the forum is the State of the Union or the Alito hearings, the Bush Administration consistently pounds the themes of advancing freedom and democracy, promoting security, and cherishing the rule of law. These are winning themes, with a winning vocabulary, devised no doubt by Karl Rove.

In the past, Democrats have tried to frame the debate, instead, as being about civil rights, civil liberties, equality, and autonomy or privacy. These themes are not unrelated to those that the Republicans sound. Equality, for example, is an essential component of democracy, just as privacy is an aspect of freedom.

But the progressive articulation of progressive ideas seems very much to have run its course. Equality has become too much a buzz word for affirmative action, and privacy too much a proxy for abortion rights.

In my view, we shouldn't be fighting on these grand but also, in some ways, narrow grounds anyway. Democracy and security and the rule of law should be the dominion of progressives, not of this Administration, which has retarded each in turn. Democrats, too, died in the World Trade Center attacks. Democrats, too, fear for their children's security and safety. Democrats, too, thrill to the sight of an Iraqi woman holding up a dyed finger that shows that -- for the first time in her life, and previously unimaginably - she voted in a democratic election.

Simply put, the Democratic agenda in law and politics should be democracy with a small d - advanced over and over and over again. And this means, among many other things, an agenda for more accountable government, with greater transparency, fairer elections, more radical campaign finance reform; a real belief in checks and balances; active support abroad for the cause of freedom; and our own proposed balance between the power of government and the liberty of the citizens it is supposed to serve.

This Administration's vision of democracy in action has been one of cronyism and corruption, closed-door policymaking, secret grabs of extra-constitutional power, and the intimidation of dissenters and whistleblowers. That is a record that yields the high ground on the most fundamental virtues this nation is supposed to embody - and if progressives cannot seize that high ground now, another opportunity may be a very long time in coming.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.