President Obama and Civil Liberties: Unraveling a Very Mixed Record

President Barack Obama endorsed same-sex marriage on May 9. His process of "evolving" on the issue, pushed by LGBT activists and Vice President Joe Biden's endorsement a few days earlier, provides an insight into his handling of civil liberties issues generally.

Obama's election in 2008 raised great hopes among civil libertarians who anticipated he would end the worst civil liberties abuses of the Bush administration: torture, extreme claims of presidential power, secrecy, government-sponsored religion, and others. Obama promptly fulfilled some of these expectations -- banning torture, promising to close the Guantanamo Bay prison, and ending the international "gag order" on abortion counseling.

Civil libertarian hopes soon turned to dismay, however, as Obama maintained many obnoxious Bush national security policies. A blistering 2010 ACLU report accused the administration of embracing the "legal architecture" of Bush's war on terrorism on secrecy, habeas corpus, and other issues. Obama's policy on targeted killings and enthusiasm for drones as an instrument of war, moreover, has raised very troubling new questions about presidential power. On domestic issues, Obama's record has been mixed. He has reinvigorated civil rights enforcement, especially on voting rights and police misconduct, and has been good on women's rights, including a strong position on contraceptive coverage by religious-affiliated institutions under the new health care law. But he refuses to address the war on drugs and imprisonment policies, issues that have a major impact on the African-American community.

How do we unravel the contradictions in Obama's civil liberties record? Several factors are at work, and a historical perspective illuminates their dynamics.

Politically, Obama has had the worst luck of any president since Herbert Hoover. He is being held responsible for the economic crash and it has forced him to rethink domestic priorities. The implacable opposition of congressional Republicans, meanwhile, has blocked initiatives he might have taken. Even more important, Obama is fundamentally a moderate, deeply wedded to bipartisanship. As a result, he is instinctively disinclined to push controversial issues, which of course includes most civil liberties issues. This spring, for example, he has shied away from labeling GOP attacks on birth control and Planned Parenthood as a "war on women," even though he has a good position on women's issues. It is the unwillingness to take the fight to the other side that blurs his public posture.

In refusing to push unpopular civil liberties issues, Obama continues a long presidential tradition. Bill Clinton provides a recent and instructive example. While he was very strong on women's rights, reproductive rights, and separation of church and state, he pushed draconic criminal justice policies that spurred the American imprisonment binge and has primarily harmed the African-American community. With the 1996 laws on prison litigation and the death penalty, moreover, he undermined the historic right of habeas corpus, preparing the ground for President Bush's far worse assaults. All presidents beginning with Richard Nixon have sacrificed civil liberties in favor of crime control, and Obama continues that tradition.

Historical perspective also sheds valuable light on Obama's national security policies. Since the dawn of the National Security Era in the late 1930s, all presidents have been willing to sacrifice the Bill of Rights in the name of national security. FDR interned the Japanese-Americans. Truman's 1947 Loyalty Program embodied the principle of guilt by association and set the stage for McCarthyism. Eisenhower refused to denounce McCarthy by name and enthusiastically embraced CIA covert action. Kennedy also embraced CIA covert action and sought to "manage" the press regarding coverage of national security issues. The list goes on.

Obama shares with his predecessors a profound sense of duty to protect the country, not wanting to risk another Pearl Harbor or 9/11 attack. Additionally, as former CIA Director George Tenet pointed out, the President's Daily Brief includes a steady flow of reports about possible threats to the country. The intelligence agencies, meanwhile, have an interest in exaggerating such threats, while the opposition party is always ready to accuse a president of being weak on national security. All of these factors push presidents to opt for security over liberty on vital issues, and Barack Obama is no exception. And as a moderate, it is unlikely that he would have pushed significant reforms on such issues as secrecy in any event.

Can civil libertarians hope for more in an Obama second term? Possibly, but it would require strong advocacy by rights advocates -- of the kind that finally brought him to endorse same-sex marriage. Getting him to take a stronger stand on the war on women is within reach; changing his position and the dialogue on national security, however, is a far greater challenge.