Monday, January 22 , 2018, 9:20 am | Fair 61º


Susan Estrich: Fear and Freedom Locked in Battle for America’s Future

The day after 9/11, I called one of my friends and said we should write a “quickie” book on civil liberties in times of terror. We both knew what was about to happen; any half-serious student of constitutional law could figure it out. We, as a nation, were about to crack down.

And we did. Just as we did at the height of the Cold War. Just as we did during the first wave of anti-Communist frenzy, with the Alien and Sedition Acts. To be sure, there were limits. There was the wonderful story of White House counsel Alberto Gonzales rushing to the hospital bed of the ailing attorney general to try (and fail) to get him to sign off on an expansive surveillance program. There were limits, but not many.

Of course, that was the administration of President George W. Bush.

President Barack Obama, himself a former professor of constitutional law, like my friend and me, was certainly familiar with the lessons of history. Candidate Obama pledged to close Guantanamo and protect civil liberties.

As president, it turned out, he continued most of the policies of the Bush administration. Even now, even in the wake of all of the news about the full extent of the National Security Agencys data collection program, the changes being proposed are far more modest than many of Obama’s supporters would like.

What has happened to Obama? Has he forgotten all of those old cases he used to teach that remind us of the dangers and excesses that fear can produce?

I don’t think so. What has happened to Obama is simple. He became the president. He started getting the daily briefings. A guy on an airplane tried to detonate a bomb in 2009.

The basic “rule” for civil libertarians is not to ask whether you are comfortable with the decisions being made by the person making them now, but whether you would be comfortable if that power were in the hands of someone else. If Bush were still president, would Congress be holding impeachment hearings?

There is no question that the protests would be louder if a conservative Republican rather than a liberal Democrat were sitting in the Oval Office. The very fact that Obama is the one defending the NSA and rejecting drastic overhauls to its surveillance program, that it is the Obama Justice Department that is pursuing Edward Snowden and not the Bush appointees, gives some of us pause.

My students ask me: What should we do?

If I were a first-year teacher trying to prove I belonged in front of the classroom, I probably would have some kind of detailed answer. But I’ve been doing this for decades, and I know what I know — and what I don’t.

What should we do? I don’t know.

Has the NSA overreached? Almost certainly. Have these surveillance programs saved lives? So we are told. Between the risk of overreaching and the risk of terrorism, which is worse? Easy.

Not long ago, a new exercise studio opened in my neighborhood, promising new techniques for tightening and toning and a free 30-minute massage, to boot. I got a flier under my door. I checked out the website. Once.

Ever since, almost daily, an ad pops up advertising the studio. Of course it’s not a coincidence. And the ad doesn’t just pop up on my home computer; somehow, someone has figured out that my phone and my tablet are connected to me. Somebody’s watching me, and not because they’re trying to save me from terror attacks. If I’m not troubled by that, why should I be troubled by the government’s collecting data on whom I telephone?

When I first started teaching the old anti-Communist cases, I used to wonder why people didn’t see that the government was going too far. Now I understand. Fear.

I yearn for the day when we are no longer afraid, when I can look back and say of course the government shouldn’t be spying on its citizens. I yearn for the day when we feel safe enough to worry more about freedom than terror.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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