President Barack Obama has struggled to reconcile his progressive political identity with the massive American national security state since taking office in 2009, and the explosive revelations offered up by former NSA analyst Edward Snowden earlier this year only made that task more difficult. Now a district court ruling that the systematic collection of citizens’ phone records revealed by Snowden is “almost Orwelian” and likely unconstitutional has placed Obama back on the defensive, albeit with an ironic twist: a recent procedural victory in the Senate, where the “nuclear option” paved the way for a handful of the president’s liberal judges to finally be appointed to high courts, means the government’s appeal of this initial decision could be heard by jurists with a healthy skepticism of the surveillance state.
More broadly, there’s the potential here for the rift over intelligence gathering within the Democratic Party to develop into an all-out rupture as high-profile legal minds slam the status quo. On one side, there’s the president and backers of a robust national security mandate within his party, like California Senator Dianne Feinstein, as well as conservatives who defended such programs under the Bush White House. On the other are a motley crew of younger lawmakers, activists, and donors — including some from within the increasingly powerful tech industry — intent on shaping not only the rest of this administration, but the direction of progressive and libertarian politics in the future.
After all, the epic primary circus to replace Obama will begin in a matter of weeks or months. Surely, there will be major candidates on both the Democratic and Republican sides who latch on to the surveillance issue as their cause celebre, hoping it will draw fundraising and activist energy from younger people as well as the kind of headlines that tend to grow a nascent campaign into a proper movement. A series of legal decisions adding intellectual heft to the cause would only help take things to the next level. On the Democratic side, that means a candidate with the gumption to call out their party’s incumbent president (and still its most popular figure). Presumed-frontrunner and former Secretary of State Hillary Clinton would never go there, as she has traditionally been more of a security hawk even than Obama, but a progressive challenger would do well to focus on surveillance and economic inequality, the two areas where this administration has really disappointed the left.
Looking ahead, the nature of NSA litigation between now and 2016 will be crucial. This initial ruling, by District Court Judge Richard Leon, a George W. Bush-appointee, can perhaps be waved off as simply a partisan broadside — even if the reality is that Leon challenged Bush on the detention of prisoners at Guanantamo Bay and has generally shown himself to be above-the-fray. But if one of Obama’s own appointees upholds the ruling, the floodgates for an all-out revolt over surveillance may well be opened.