The Coming Political Realignment?

For a summer full of remarkable moments in U.S. national security law and policy, one of the most unusual came on July 24, when an amendment to effectively de-fund the NSA’s telephony metadata program was narrowly defeated in the House of Representatives (217-205), and only after what appears to have been strenuous last-minute pressure from the leadership in both parties to vote against the proposal. In retrospect, the vote on the “Amash-Conyers Amendment” is remarkable in several respects, including that (1) it was even close in the first place; and (2) as the name of the proposal underscores, support/opposition was not remotely along party lines. Indeed, 94 Republicans and 111 Democrats voted for the amendment to limit the NSA, whereas 134 Republicans and 83 Democrats voted against it. And, as many immediately observed, the distribution within the parties was hardly random; as Idaho Congressman Paul Labrador told the Washington Post, “I call it jokingly the Wing Nut Coalition, where you have the right wing and the left wing working together and trying to get things done.”

Whatever descriptor one uses, it seems clear that the vote represented the liberal wing of the Democratic party and the libertarian wing of the Republican party coming together against the more centrist elements of each. And so, the more interesting question about the “Wing Nut Coalition” (of which Labrador is a self-professed member) is whether it represented an atypical and fleeting moment of political realignment in a town in which even the choice of restaurants is often partisan, or whether it reflects, more significantly, a budding shift in the politics of national security in Washington–especially as they pertain to domestic topics such as surveillance.

Before dismissing the latter view out of hand, consider that the Amash-Conyers proposal was hardly the first example of such a flank-vs.-middle division on high-profile national security issues in recent years. Those who remember the bitter fight over the Fiscal Year 2012 National Defense Authorization Act (NDAA) may well recall that, back then, the principal opposition to the NDAA’s detention provisions came from a liberal-conservative coalition that objected to the potential expansion of domestic detention authority. That opposition ultimately succeeded in procuring the Feinstein Amendment to the NDAA (section 1021(e)), which preserved the pre-NDAA status quo for “the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” (A provision that proved central to the Second Circuit’s resolution of Hedges v. Obama earlier this summer.)

To similar effect, hearken back to March, and the “Stand-With-Rand” filibuster of John Brennan’s nomination to be CIA Director–motivated by concerns from both the progressive wing of the Democratic caucus and the conservative wing of the Republican caucus over the Obama administration’s equivocal answers with respect to the possibility of targeted killing operations via drone strikes against U.S. citizens and/or on U.S. soil. That particular political theater culminated in Attorney General Holder’s March 7 letter to Senator Paul–emphasizing that the government does not claim the authority “to use a weaponized drone to kill an American not engaged in combat on American soil.” What many have dismissed as a waste of time and energy on an uncontested proposition was still an important manifestation of the ability of such a coalition to grind to a halt what otherwise was (and should have been) a routine confirmation of a senior national security official–elevating the national profile of the junior Senator from Kentucky in the process.

Of course, as the result from the Amash-Conyers Amendment suggests, the two flanks do not yet appear to have enough votes to effectuate specific policy changes on their own. For one thing, the “wing nut” phenomenon appears to be limited to the House of Representatives for now (where, for obvious reasons, there’s more ideological diversity within the major parties than is typically the case in the Senate). And even in the House (where such a group could still stop any and all national security policy reforms, even if it lacks the power to get through proposals of its own), there are reasons to suspect that the Amash-Conyers Amendment was exceptional–and that the division between the camps is not nearly as close to 50-50 as the 217-205 vote suggests. After all, the vote came in the midst of some of the more sensational of the Snowden/NSA disclosures, and without a meaningful opportunity for members to hear from all sides–including meaningful background briefings from the Executive Branch.

In the short term, then, one might well think that the left-right coalition on counterterrorism civil liberties issues is just a distraction–a group capable of making a lot of noise on these issues (as these three episodes suggest), but not in a way likely to result in the circumscribing of counterterrorism authorities that the Executive Branch claims it needs. That’s certainly what happened with the NDAA and the Paul filibuster.

But the vote on the Amash-Conyers Amendment, in retrospect, seems different in both kind and degree from these two prior examples… With new revelations seemingly every week (if not every day) about the extent to which the government is not just collecting, but using, data of U.S. persons as part of its authorities under the Foreign Intelligence Surveillance Act, and with new disclosures of opinions from the FISA Court upholding such government conduct that, charitably, leave more than a little to be desired, surveillance may be the issue on which this coalition finally finds its legs–and, more significantly, its votes. Indeed, we’ve already seen some indication of openness on the part of the Obama administration to meaningful discussions of surveillance reform–or, at the very least, to meaningful public debate over the scope of, and need for, the NSA’s various surveillance authorities. And that openness may well reflect at least tacit acquiesence in a new normal–one in which satisfying the centrist camps of the two parties may be necessary, but no longer sufficient.

If so, then the question becomes what happens next… I’ve written before about the phenomenon I labeled “libertarian hijacking”–when “libertarians form a short-term coalition with progressive Democrats on national security issues, only to pack up and basically go home once they have extracted concessions that don’t actually resolve the real issues.” That’s certainly one way to understand the NDAA mishigas from December 2011, and the Stand-with-Rand filibuster from earlier this year. But surveillance is different in one critical respect: it’s an area where the central goals of liberals and libertarians, i.e., to impose greater limits on the government’s ability to collect (and query) information on those inside the United States, are largely aligned–at least at this moment.

And so unlike in the drone and detention contexts, which lend themselves to differentiation based upon the citizenship of the targets and the location of the strike/capture/detention, it’s entirely possible that meaningful reform of the government’s surveillance authorities sufficient to mollify libertarians will also satisfy at least many progressives in Congress. Thus, as Congress considers NSA/FISA reform proposals, it might not be enough for the two camps to simply put additional teeth into the judicial review undertaken by the FISA Court; there may well be sufficient support from the two wings to also impose tighter constraints on the NSA’s authorities themselves, whether vis-a-vis collection or use.

Even if all of this happens (as the tentative, only-if-there’s-a-budget nature of this Friday’s PCLOB hearing on the NSA underscores, we’d have to have a functioning government before we can have a meaningful conversation about NSA reform), it could quite easily be a surveillance-specific result–in which the “wing nuts” succeed in pushing for greater reforms of the government’s surveillance powers than we might otherwise have expected, but then are unable to agree when confronted with other issues, such as life after the AUMF, military commissions after al Bahlul, and so on. After all, at the end of the day, liberals and libertarians will never see eye-to-eye on any number of national security-related policy questions–especially those in which citizenship, territoriality, and/or international law play a significant role.

But insofar as surveillance provides the means pursuant to which national security politics becomes more than simply hawks vs. doves, executive power vs. legislative power, and Democrats vs. Republicans, it might stimulate a larger and broader realignment of our discourse when it comes to how to balance national security with civil liberties–and one that might have lots of unpredictable consequences going forward. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).