JEFFREY ROSEN: A Card-Carrying Civil Libertarian

Washington

IF Barack Obama wins in November, we could have not only our first president who is an African-American, but also our first president who is a civil libertarian. Throughout his career, Mr. Obama has been more consistent than Hillary Clinton on issues from the Patriot Act to bans on flag burning. At the same time, he has reached out to Republicans and independents to build support for his views. Mrs. Clinton, by contrast, has embraced some of the instrumental tacking of Bill Clinton, whose presidency disappointed liberal and conservative civil libertarians on issue after issue.

Mr. Obama made his name in the Illinois Legislature by championing historic civil liberties reforms, like the mandatory recording of all interrogations and confessions in capital cases. Although prosecutors, the police, the Democratic governor and even some death penalty advocates were initially opposed to the bill, Mr. Obama won them over. The reform passed unanimously, and it has been adopted by four other states and the District of Columbia.

In the Senate, Mr. Obama distinguished himself by making civil liberties one of his legislative priorities. He co-sponsored a bipartisan reform bill that would have cured the worst excesses of the Patriot Act by meaningfully tightening the standards for warrantless surveillance. Once again, he helped encourage a coalition of civil-libertarian liberals and libertarian conservatives. The effort failed when Hillary Clinton joined 13 other Democrats in supporting a Republican motion to cut off debate on amendments to the Patriot Act.

That wasn’t the first time Mrs. Clinton tacked to the center in a civil-liberties debate. In 2005, she co-sponsored a bill that would have made it a federal crime to intimidate someone by burning a flag, even though the Supreme Court had struck down similar laws in the past. (Mr. Obama supported a narrower bill that would have satisfied the Constitution.) And Mrs. Clinton opposed a moderate proposal by the United States Sentencing Commission that would have retroactively reduced the draconian penalties for possession of crack cocaine — a proposal supported by Mr. Obama, and by liberal as well as conservative judges.

The real concern about Hillary Clinton’s record on civil liberties is that her administration would look like that of her husband. Bill Clinton’s presidency had many virtues, but a devotion to civil liberties was not one of them. After the Oklahoma City bombing, the Clinton administration proposed many of the expansions of police power that would end up in the Patriot Act. (They were opposed at the time by the same coalition of civil-libertarian liberals and libertarian conservatives that Mr. Obama has supported.) The Clinton administration’s tough-on-crime policies also contributed to the rising prison population, and to the fact that the United States has a higher incarceration rate than any other country.

Hillary Clinton’s conduct during the Clinton impeachment does not inspire confidence in her respect for privacy. Kathleen Willey, one of the women who accused President Clinton of unwanted advances, charges in a new book that Mrs. Clinton participated in the smear campaigns against her. A federal judge found that the Clinton White House had “committed a criminal violation” of Ms. Willey’s privacy rights by releasing her private letters. (An appellate court later criticized the judge’s “sweeping pronouncements.”)

Whether Hillary Clinton’s administration would, in fact, look like Bill Clinton’s on civil liberties is hard to judge. In many areas, she has demonstrated an impressive commitment. She proposed a privacy bill of rights that would require consumers to “opt in” before their commercial data is shared and would allow them to sue companies for the misuse of data. She has called for the resurrection of a federal “privacy czar” who would balance the privacy costs and benefits of regulations.

She made an eloquent speech in the Senate opposing the suspension of habeas corpus. And she has emphasized the importance of Congressional oversight of executive power, promising as president that she would consider surrendering some of the authority that President Bush unilaterally seized. Clearly, she would be immeasurably better on civil liberties than George W. Bush.

But Mrs. Clinton’s approach to the subject is that of a top-down progressive. Her speeches about privacy suggest that she has boundless faith in the power of experts, judges and ultimately herself to strike the correct balance between privacy and security.

Moreover, the core constituency that cares intensely about civil liberties is a distinct minority — some polls estimate it as around 20 percent of the electorate. A polarizing president, who played primarily to the Democratic base and refused to reach out to conservative libertarians, would have no hope of striking a sensible balance between privacy and security.

Mr. Obama, by contrast, is not a knee-jerk believer in the old-fashioned liberal view that courts should unilaterally impose civil liberties protections on unwilling majorities. His formative experiences have involved arguing for civil liberties in the legislatures rather than courts, and winning over skeptics on both sides of the political spectrum, as he won over the police and prosecutors in Chicago.

As a former grass-roots activist, Mr. Obama understands the need to make the case for civil liberties in the political arena. At a time when America’s civil-libertarian tradition has been embattled at home and abroad, his candidacy offers a unique opportunity.

Jeffrey Rosen, a law professor at George Washington University, is the author of “The Supreme Court: The Personalities and Rivalries That Defined America.”