Paul Pillar

Competing Rights and the Failure of Politics

John Gray's review essay in the newest National Interest argues persuasively that human rights are meaningless in the absence of a political structure to implement and enforce them. Moreover, politics are needed to choose among competing rights. As Gray puts it:

Basic human freedoms do not form a harmonious system whose dictates can be decided by a court...they are often at odds with one another—freedom of information with the freedom that goes with privacy, for example. The role of politics is to devise a modus vivendi among these rival liberties.

All too frequently politics fails to do that. When it does, the usual outcome is that a part of the bureaucracy—whatever part that, given its mission, is forced to take action—stumbles through the rival rights and in effect makes a decision on behalf of the political system, based on its best sense of the prevailing political climate. I earlier discussed how this is the case with security measures against terrorism, and most conspicuously with intrusive measures taken in the name of aviation security. In the absence of clear decisions by political leaders of what balance to strike between security and privacy, it is left to the Transportation Security Administration to make such decisions, pushing more toward security when that seems to be what is most wanted, and backing off in response to squawking about loss of privacy.

A feature article in the Washington Post on aviation security raises some of the familiar issues about TSA procedures, with the added issue of whether less emphasis should be placed on comprehensive scrutiny of all passengers and more on profiling to identify those passengers who ought to be scrutinized more than others. There still are trade-offs among competing values here, only it's gotten more complicated. In addition to weighing security against monetary costs and privacy, there is the weighing of a right to privacy against a right to equal treatment and nondiscrimination. More comprehensive screening may mean more infringement on the first right; more use of profiling may compromise the second right. TSA Director John Pistole responded appropriately when asked about using personal information more extensively to identify suspicious passengers: “Sure, if Congress said we should do that.” Mr. Pistole is probably astute enough not to expect Congress to offer a clear decision on this one way or another.

The Constitution Project recently released a report on data mining, with recommended guidelines for governmental use of data mining for such purposes as counterterrorism. I am a member of the Project's Liberty and Security Committee, which prepared the report, and I was glad to be associated with an effort to guide exactly the sorts of decisions that the political system needs to make when dealing with competing rights such as privacy. My own major concern with shaping the report was less with seeking a particular balance among rights and more with explicitly recognizing, consistent with John Gray's argument, that data mining involves conflicts among different rights and that political decisions must be made about striking balances.

Political leaders may sometimes fail to take those decisions because they do not recognize the conflicts. More often they recognize (at least privately) the conflicts but do not take a clear decision because it is hard to make any decision without offending some value or right that people consider important. They are happy in effect to push the decision-making down into the bureaucracy, so the bureaucracy can take the heat when controversies arise.

This form of evading hard decisions is a subset of the more general technique of political leaders pushing downward apparent responsibility for controversial actions, and with it any blame that may later arise. The technique may involve wink-and-nod guidance that is just vague enough to avoid paper trails of decision-making at higher levels. This may have been the case with the late General John D. Lavelle, the Vietnam War Air Force commander who was blamed for allegedly ordering rogue airstrikes in North Vietnam and was demoted as a result. Those trying to clear Lavelle's name say he was actually carrying out the Nixon administration's orders. I don't know which side is factually correct, but it is certainly plausible that the ruthless White House that was willing to let FBI Director L. Patrick Gray twist slowly, slowly in the wind as the Watergate cover-up was unraveling would do something similar to Lavelle. The wink-and-nod technique has been used in administrations less ruthless than that one. The Clinton administration appears to have used it regarding the application of lethal force against Osama bin Laden, back in the pre-9/11 days when such an application was a matter of delicacy and controversy.

Politics will continue to fail to provide tough, clear, necessary decisions when values and rights conflict. Politicians have too much self-interest involved for us to expect otherwise.