Civil libertarianism was not written into America’s national code. Rather, it has been a strategy of progressives. It often works by denying that it is a strategy, and by claiming merely to serve America’s founding commitments or the incontestable norms of human dignity, without choice or cost. But from time to time, it is worth naming it as a strategy and evaluating how—and what—it is doing.
Civil libertarianism in the United States began, in fact, as a leftist response to the persecution of communists and pacifists during and after the First World War (when the U.S. Supreme Court began defending freedom of speech). Its advocates were internationalists and radicals who claimed that their values were as American as apple pie. ACLU co-founder and then fellow traveler of the Soviet experiment Roger Baldwin helped found the U.S. movement for the sake of his pacifist values. He privately advised followers “to get a good lot of flags” and “talk a good deal about the Constitution” as part of his strategy to represent the movement’s precepts as if they were what Americans already believed.
But such public relations came—and still comes—at a price. The focus on civil liberties singles out certain issues rather than others, and risks making the strategy the goal, converting means into ends. Even if it is just a ranking of priorities, focusing on one burning problem configures our possibilities and intervenes in a particular way. I think it is now fair to voice the worry that, in its post–9/11 form, our civil libertarian response has accompanied the rise of “hygienic war.” Endless, though clean, war, is one of the main legacies of our time.
Not only have civil libertarians generally failed to connect with broader antiwar politics—such as by failing to join opposition to the Iraq war in 2003—but they have also tolerated the normalization of perpetual, if more sanitary, war. American liberalism was once haunted by its participation in, indeed sometimes escalation of, the Cold War, most memorably during the Vietnam disaster. In the long view, it is worth asking whether the contribution of an otherwise upright culture of civil liberties to the rise of hygienic war is a parallel to—even a continuation of—that mistake.
The prioritization of civil liberties by American liberals since 9/11 has been an immense contribution. We have read about torture, and Guantánamo, and torture again, glowing with outrage at every turn. Even if it did not secure accountability for these outrages, the defense of civil liberties at least strengthened the norms prohibiting inhumane conduct in war—especially unacceptable forms of detention and interrogation. The value of civil libertarianism was at its greatest when those norms seemed momentarily fragile, and the country appeared to be slipping over to the “dark side,” as revelations from Abu Ghraib, Guantánamo, and elsewhere began to mount.
But we should not pretend that you can never have too much of a good thing. Oppositional to the state in the short term, civil libertarianism can function to grant the state legitimacy in the long term by helping scrub wars of their outrageous excesses—as if those excesses were the main problem.
Under civil libertarianism (now augmented by a much newer human rights internationalism), how the state fights its enemies is made to matter much more than why it does so and with what consequences. The question of whether a war is right or wrong to begin with is often left to the side so long as the way the war is fought is arguably in conformity with national law and international standards.
Yet the standards enshrined in today’s versions of the laws of war are a low bar for states to clear, and are already widely accepted. It is not clear why violations of the laws governing how war is fought should be the main ethical concern about contemporary armed conflict. This is especially so because, since the Vietnam era, our military culture generally insists upon following those laws. (One of Jane Mayer’s best New Yorker pieces chronicled how the dean of West Point flew to Hollywood to beg producers of “24” to stop glamorizing torture—a unique example of the military trying to keep civilians within bounds.) It follows that when civil libertarians engage military actors who want to hew to legal codes, it is not necessarily to undermine national security or the surveillance state; in fact, it is to help the military realize its mission.
There are two reasons why civil libertarians have helped us reach national consensus on making intermittent dirty war a thing of the past, but endless clean war a thing of the present and future. Both depend on the proximity of civil libertarians to the Democratic Party.
First, civil libertarianism was not just a moral stand but also—and perhaps even primarily—a strategy chosen in a particular context. In my view, the civil libertarian response to George W. Bush’s declaration of a “war on terror” was based on an understandable judgment call about the constraints post–9/11 nationalism placed on reining in impending war. If war could not be stopped, it could be made clean. With George McGovern’s electoral defeats providing the enduring superego of the Democratic party, critiques of our national security strategy abjure more partisan objections to America’s role in the world. But in exchange for its potency and more mainstream appeal, the civil liberties strategy therefore ends up ratifying many aspects of the American state projects that it aims to bring within legal boundaries. To put it another way: civil society constitutionalism today is good at regulating how the fight goes but bad at regulating the deployment of violence in the first place.
In an admiring description, David Cole has dubbed the strategy “civil society constitutionalism,” a mechanism that he says functions to remind the nation of its true character (founded as it was on liberties and rights). While this is partly true, this description also seems like part of the public relations strategy—a new version of getting a lot of flags and talking a good deal about the Constitution—rather than a dispassionate analysis of it. You cannot, of course, expect proponents of a strategy to name it as such (at least not in public), or to question whether their campaign against “the dark side” might have a dark side of its own.
Second, with the election of Barack Obama, civil libertarians needed to adjust to the fact that the national security and surveillance state were now Democratic inheritances. Confronting it in the way that Democrats had done as outsiders during the Bush years now turned into either a loyalty test or an occasion for celebrating improvement.
Under Bush, a civil liberties strategy could, and often did, function as a proxy for Democratic criticism of Republican foreign policy. Everyone knew that, however important an end in itself, stigmatizing torture was also an indirect means to criticize the president. Under a Democratic president, by contrast, the civil libertarians—who were also much more likely to be his supporters—needed to recalibrate their strategy. Defending civil liberties helped Obama garner support, and not only to keep the nation true to its “founding principles.” His obvious tweaks to offensive practices became occasions for enthusiastic compliments about how he was saving America from immorality, or sage assertions about how he had properly balanced liberty and security. Liberals have prided themselves on their distinction from conservatives, and rightly so. But it can sometimes seem as if the two sides are more allied than opposed—when the function of civil libertarianism is to shore up equilibrium, and to provide a kind of moral blessing to geopolitical might, rather than to challenge it.
In other words, civil society constitutionalism can function to provide, and not merely to sap, the legitimacy of the state, and as time passes, its role in precisely this regard will deserve to be the topic of more open debate. As a partisan strategy among other things, civil liberties activism proved a powerful wedge issue after Abu Ghraib. But endless and clean war has been a common project of Democratic and Republican foreign policy, and civil liberties and human rights approaches have missed the significance of this development and therefore the chance to challenge it. How will this choice look in ten, fifty, or a hundred years? Will people celebrate American civil libertarians for bringing their state within acceptable bounds, or for helping it find its footing in a new era of interminable war?
Nothing is wrong with strategizing. But to make more than merely tactical sense, civil libertarianism has to be the first step in a broader approach. No one can doubt its value, especially when getting a foot in the door often appears to be all that can be achieved. But progressives need to do more than focus on how wars are fought.
It makes sense that contesting police brutality was an early tactic to oppose the carceral state and to challenge racism. But nobody wants the police just to clean up their act; the broader objective of Black Lives Matter activism is to address the structural foundations of racial hierarchy. The same ought to be true of America’s policing of the world.
The pacifist origins of civil liberties activism look increasingly ironic in an era of endless war. Today, we should worry that our approach often functions to keep the U.S. government honest, without altering its agenda. Base tactics are taken off the table, but the basic game remains.
Samuel Moyn teaches law and history at Harvard University. His latest book is Christian Human Rights (University of Pennsylvania Press, 2015).
This article is part of Dissent’s special issue of “Arguments on the Left.” To read David Cole’s counter-argument, click here.