Caricatures created by politics never fit comfortably into the Oval Office. Eisenhower was less deferential to the military than he seemed likely to be, Kennedy was not at all beholden to the pope, George W. Bush was smarter than portrayed and Barack Obama has not led a charge from the left—least of all on behalf of the civil liberties that have eroded since September 11, 2001.
In pursuit of both terrorists and common criminals, Obama has perpetuated so many of the Bush administration’s policies that even Republicans might take heart. Granted, he triggered an outcry on the right when he attempted to close the Guantánamo prison and try the accused 9/11 plotters in federal court, and he repudiated the Bush/Cheney torture policies by ordering interrogators to abide by the Army Field Manual. His moderately liberal judicial nominees, including two for the Supreme Court, have not won him points with the Federalist Society, which grooms young conservatives for the bench.
Otherwise, though, there has been little in his civil liberties record to bother nonlibertarian Republicans. Data collection on individuals has flourished without judicial oversight. People under no suspicion are still monitored clandestinely with Bush-era legal tools. State secrecy is invoked to thwart lawsuits by victims of government abuse. Leakers and whistleblowers are aggressively prosecuted, and federal agencies vigorously resist inquiries made under the Freedom of Information Act. Last spring the hard line against defendants’ rights reached into certain criminal matters that have nothing to do with national security.
Affairs of state tend to drive most presidents toward the center on both foreign and domestic policy, no matter where on the political spectrum they begin, and especially so in the areas of intelligence and law enforcement. Institutional inertia doesn’t allow for quick reversals, federal agencies’ interests transcend administrations and the White House stands at a confluence of perpetual crises. So presidents are hardly inclined to give up their powers, even those they decried as candidates.
Obama is not an exception to the rule. If he were, he would have made good on his promises to rethink the Patriot Act, curb the use of administrative subpoenas known as national security letters and render government more accountable through transparency. He would have bolstered the rights of criminal defendants, pressed for Internet privacy and supported a robust shield law to protect reporters’ confidential sources instead of issuing subpoenas, as his Justice Department has done to James Risen of the New York Times. In short, Obama would have given conservatives, rather than liberals, real reason for distress.
But the country remains stuck in the post-traumatic stress from 9/11, notwithstanding the killing of Osama bin Laden. The specter of terrorism haunts us still, the FBI keeps uncovering little plots and deadly aspirations, and officials are braced for some larger assault. Obama came too soon in the historical cycle to be the reformer on civil liberties that many who rallied for him in 2008 expected. In the past, it has taken time for the country to correct its deviations from constitutional principles, and it did so only when security fears abated: after the virtual war with France that generated the Alien and Sedition Acts under John Adams; after the Civil War; after World Wars I and II; after cold war tensions eased. Nearly a decade after 9/11, Americans have not yet relaxed, and Obama has not yet led us to reflect on what we have done to ourselves.