I’m hardly immune. I was reminded of this the other night, when a conservative friend (having seen a blurb of some sort on his smart phone) abruptly voiced righteous indignation against Obama for issuing some sort of executive order denying protesters the right to gather anywhere in the vicinity of the president. He snarled about the unprecedented attack on free speech--and he included not only Obama, but Nancy Pelosi and political liberals generally, within the scope of his outrage.
I didn’t say anything. But I bristled defensively. Of course he was talking, not about an executive order, but about a bill that Obama recently signed into law—specifically HR 347, innocuously-named the "Federal Restricted Buildings and Grounds Improvement Act of 2011." The bill passed by overwhelming margins in both the House and the Senate (only three “no” votes in the House). And Obama signed it.
I didn’t know much about the bill at the time. It was barely on my radar screen as something that the Occupy movement was unhappy with, but which mainly just modified existing legislation restricting disruptive trespassing—including by protesters—into areas under Secret Service protection. But when my friend burst out against Obama and Pelosi as the culprits behind this unprecedented liberal assault on American civil liberties, my knee-jerk reaction was to rush to Obama’s defense. He was just signing something that had been passed by Congress—including by the Republican-controlled House. And Congress clearly had the votes to override a veto. The bill was a slight revision of things already on the books. This was hardly some sort of evidence of fascist aspirations on the part of the Obama administration.
I didn’t say any of this, deciding it was better to hold my tongue. But the next day I decided to look more closely into the bill. It turns out it was introduced by a Republican: Rep. Thomas Rooney of Florida. It enjoyed huge bipartisan support. And the main changes it made to existing laws were two: (1) It took policies that had been applied to areas placed under Secret Service protection and extended them to the White House and the Vice-President’s residence. Previously, trespassing in these areas fell exclusively under local DC anti-trespassing laws. Now, it would fall under federal law--a federal felony offense. (2) Whereas previous law criminalized “willfully and knowingly” trespassing into such areas with disruptive intent, the new law deleted the “willfully.”
In other words, the mens rea for criminal liability has been broadened by the new law, effectively making it easier to prosecute and convict trespassers who enter a restricted area with “disruptive” intentions. Political protest is, of course, inherently disruptive. As Jeanine Molloff notes in a Huffington Post article,
…the bill…criminalizes 'disruptive conduct' in such vague terms that a 7th grader disrupting visiting dignitaries receiving Secret Service protection, over any issue -- (no matter how trivial), such as school uniforms -- would be potentially guilty of a federal felony. What Rooney, and so many government elites cynically ignore is the very nature of protest. Protest in its very nature, is intended to disrupt government business as usual, for without such disruption the protest would be as effective as a leaky condom.Much hinges on what work the term “willfully”--or its deletion--does in the law. At least some legal scholars contend that this deletion may mean that a "disruptive" trespasser can now be held guilty of violating the modified federal trespass law even if ignorant of the fact that an area has come under Secret Service protection. Hence, protesters might inadvertently find themselves felons—and so face up to 10 years in a federal penitentiary—just for occupying an area in protest. This explains why the bill came to be called the anti-Occupy bill by people on the left. It was seen, in effect, as an attempt to make it easier to prosecute members of the Occupy movement.
But notice something: People on the left and on the right might have reasons to be concerned about such a bill. But at least initially, I was prepared to dismiss my friend’s outrage as nothing but an unfair partisan attack on the Obama administration.
Of course, given the facts (enormous bipartisan support, a Republican sponsor, etc.), to frame the concern as a problem with the Obama administration, or with liberal politicians more generally, clearly is a mistake. But that’s not the end of the story. Because one can disentangle the broader concern about free speech rights from the partisan framing of it. And I almost didn't.
I wouldn’t be surprised if, likewise, many on the right summarily dismissed the objections to HR347 that they heard, simply because they were coming from members of the Occupy movement. If so, they were falling into the same pattern of partisan defensiveness that I instinctively fell into when my conservative friend voiced his outrage.
Consider a slightly different example: the recent furor over the so-called "National Defense Resource Preparedness" executive order. By taking the order out of its historic context, conservative news sources and bloggers managed to represent Obama’s signing of the order as a frightening and unprecedented power-grab. They described the move in catastrophic terms, as a fundamental and dangerous assault on our civil liberties, lending the government carte-blanche authority to declare martial law, appropriate resources, etc.
Liberals in turn rushed to Obama's defense by pointing to clear evidence that versions of this executive order have been around since the middle of the 20th Century, that it was amended by the Bush administration, and that the new version is simply a change in wording necessitated by administrative changes in the federal government—with no substantive change in the scope of government powers. Not a new power grab, but bipartisan business as usual.
Of course, they were right. But once that became incontrovertible, what happened? The criticism of the executive order lost its public traction. Insofar as the motivation to press the criticism was to tar-and-feather Obama, not every presidential administration since Eisenhower, a national conversation about this long-standing executive order, its wisdom and its consistency with American values, ended before it began—simply because it couldn’t do the partisan work of painting Obama as a uniquely dangerous threat to liberty.
The pattern is as common as it is insidious: A Republican administration institutes a policy that restricts the scope of American liberties (the Patriot Act, let’s say). Liberal pundits deride it as another example of Republican power-grabbing, another conservative assault on the American people. The language of the critique, however, raises the defensive hackles of all those who self-define as conservative or Republican, essentially ensuring that they rally behind “their” administration. Conservative pundits go on the attack, painting the liberal critics as offering nothing more than a partisan critique. The critique is rooted in “their” politics, and so it isn’t "ours." Even if the concern is one that might have stimulated bipartisan protest, the framing of the concern as a partisan issue ensures that it remains safely limited to the opposition party.
And when, a few years later, the opposition party gets into office, the very same pattern continues in reverse. The troubling policies are perpetuated (in the form of an updated version of the Patriot Act, such as the National Defense Authorization Act)—and derided by conservative pundits in such a way as to stimulate a wagon-circling defensive response.
Part of what drives the pattern is the claim, by the opposition party, that the party in power is pursuing an unprecedented assault (on American liberties or whatever). The problematic government practices are catastrophized—likened, perhaps, to the ramp-up to the fascist take-over of Germany. But because the activities motivating the charge are business-as-usual government practices, the defensive response becomes something like the following: “Oh, come on! Your administration did exactly the same thing. This isn’t an unprecedented assault. And it’s not fascism. It’s just how government does things.”
And they’re right. Because the concern has been framed in the language of “unprecedented assault,” exposing the fact that there’s a lot of precedent is taken as a refutation. Because the behavior has been around for decades without leading to a Nazi takeover of the United States, those crazies across the aisle have been exposed as idiots. We win!
And everybody loses. Because, of course, a business-as-usual truncation of civil liberties is far more serious than an unprecedented one, precisely because it is more deeply entrenched. And such a truncation of civil liberties warrants critical attention in the context of a deliberative democracy even if it’s not as oppressive or as dangerous as fascism. Even if we as a society decide that the truncation of civil liberties is justified by other social values we want to preserve, this should be something society decides.
Instead, society is kept in a polarized state that impedes meaningful collective deliberation.
Or so it seems to me at the moment. Thoughts?