Much has been said and written about Mr. Obama’s distressing record on civil liberties. Many have gone so far as to argue that he’s worse than his predecessor, that he has assumed powers that are strictly forbidden by the Constitution, that he has begun acting more like a king than a president. These critics have a mountain of objective data from which to draw in making their case.

My mind never stops challenging, though, and this morning I woke up in a contrary mood. I find myself asking a simple what if: what if President Obama is, in fact, doing the right thing? What if his routine abrogations of the law are necessary? I’m not arguing that this is the case, but the question seems worth considering.

Let’s consider a couple of examples that have been on people’s minds of late. First, air travel, the TSA, backscatters and gate rape. If you’ve been on an airplane in the last decade you’ve been subject to violations of personal privacy that would have caused Ben Franklin and the rest of the framers to faint dead away. Just as a quick refresher, think about your last couple of trips through security and then read this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Sure, one could quickly help Mr. Jefferson and Mr. Madison and the rest of our learned forefathers understand the nature of the threat facing travelers (and those who might be in the buildings that our enemies would like to crash aircraft into), but a machine that allows complete strangers to see through your clothes? Government employees groping your willie?!

That these measures are necessary is the only argument remaining to us, because we cannot, if we have read the document, argue that they are Constitutional. So, why are these affronts tolerated? Why does our president condone them? Is he a pervert? Are our elected officials drunk on power and bent on transforming us into a police state? Or, perhaps, is there an actual justification?

We’ve been hearing, for the last year or two, about the emerging threat of “body bombs.” al Qaeda operatives in Yemen are said to be developing ways of surgically implanting high explosives into the bodies of suicide bombers, which would make detection through more conventional means damned near impossible. As the story linked above explains, we have already seen a trial run.

When we compare timelines, we see deployment of backscatters happening relatively quickly, and a good bit in advance of the diffusion of body bomb stories in the popular press. Not long ago someone pointed this out to me (I wish I could recall who so I could give due credit), asking a fairly logical question: are backscatters the logical response to top-secret intelligence about this new terrorist tool?

Damned good question. The enemy has a new toy. You can’t detect it. Failing to detect it results in planes dropping out of the sky like blackbirds flying through a cloud of chlorine gas. Do you:

a) use backscatters and take a beating for being a fascist?
b) do nothing and hope for the best?

One supposes you could implement the backscatters and tell the public the whole truth about why, but this is tricky. Doing so might jeopardize your intelligence operations in ways that increase the threat long-term. Also, given the general character of our media these days and the stressed, fever-whipped ignorance of so much of the population, does revealing your evidence touch off even higher levels of paranoid stupidity (leading directly to the election of cynical war and security hawks so far to the right they make Dick Cheney look like Gandhi)?

I keep looking at the equation. And I keep not seeing a good answer.

The second issue is the “kill list” – the president and his advisors meet periodically to decide whom to target with drone strikes, and it has been decided that even American citizens can be targeted without due process. If the Constitutional problems with this last bit aren’t obvious to you, stop reading right now and go enroll in a remedial civics class somewhere.

But… There is no question that there are people out there bent on killing US citizens, and we know from experience that some of them are themselves packing US passports. So what do you do when one of your own declares war on you? If it’s a foreign enemy, you defend yourself using whatever means you must. Somebody is shooting at you, you shoot back. If somebody makes clear that they’re going to shoot at you as soon as they get a clean shot, you shoot as soon as you get a clean shot. If you do not feel this way, please resign immediately and hand the reins over to someone with a survival instinct.

Say we know that one John Jones, born and raised in Peoria, is now huddling in Pakistan with Islamic extremists plotting against US civilians. Among his colleagues are people tied to past terrorist activities, so there is no reason to doubt John’s sincerity. Do you:

a) take the shot when you get it?
b) wait until he comes back to the US so you can arrest him?
c) put significant numbers of US military personnel at risk in an attempt to extract him?

Again, I don’t see any obviously good answers.

Before I launch into my conclusion, such as it is, let me take a second to address some obvious objections to the above musings.

1) It’s our own damned fault. Most of the anti-US terror stems, at least indirectly, from decades of arrogant American foreign policy action that was guaranteed to foster precisely this kinds of backlash.

An argument that is as irrelevant as it is accurate. There’s no question whatsoever that we brought much of this on ourselves, but that hardly adds up to “so we now have an obligation to stand still while they kill us for things our grandparents did to their grandparents.” Please, let’s stay rational here.

2: The president swears to uphold the Constitution, not to sidestep it whenever he feels it’s getting in the way of accomplishing other goals, even worthy ones.

I got no real response to that one, do I?

3: The whole “body bomb” argument only works if we trust the reports, which come from the government, which can’t be trusted.

Yeah, and this one is a bitch. It’s the single best answer to what I’m suggesting here that I can think of. If I want to grab more power, then scaring the piss out of people is the best way to do it. See also Goebbels, Joseph.

So we have to think hard about plausibility. Do I believe Barack Obama is benign and ultimately trustworthy? Fuck, no. But I’m also not sure I think he’s plotting to burn the Reichstag. Authority is inherently expansive and I’ve seen no indications that Obama is looking to roll back any of the Bush administration’s obscene power grabs. At the same time, people did fly airplanes into the World Trade Center a few years ago, and those activities were consistent with other terrorist actions we have seen around the world. And not all of that information comes from sources that the US information machine controls.

Which means that the only way to conclude that there is no valid terror threat is to buy the truther line hook and sinker. I’ll leave you to ponder that one as you will.

In the end, it all boils down to a question of trust. Most of us probably feel like if we had all the information, we could better evaluate the implications of these kinds of difficult questions. (Most of us are wrong about this, but we think it anyway.) You’re telling me you have to do this thing that I find appalling, but it’s for my own good? Uhhh, prove it. Well, you say, you can’t prove it because that information is top secret and revealing it will put people in danger. So I’m like, what you’re saying is I need to trust you without any evidence?

This is why we have a Constitution. The founders understood the innately expansive and corrupting nature of power. They understood quite clearly that power cannot be trusted. The US system of government is, therefore, the most aggressive hedge against power ever constructed. No, Mr. President, I don’t trust you, I trust the Constitution. Which, by the way, you swore to uphold. Just saying.

But. But. All these buts. There are actual threats, and a raw, patriotic insistence on an originalist reading of the 4th Amendment probably is a terrorist’s best friend, isn’t it? If I hate America and want to kill as many of you as I can, an airport security system that requires probable cause before a security search is awesome. Ducks in a barrel. Right?

We can puff out our chests and wave the flag. We can say things like “I’d rather die on my feet than live on my knees.” We can sing along with Lee Greenwood. People like me can point to that image at the top of the page and the motto – “that which makes us safe also makes us free” – which is taken from Minority Report. That’s the motto of the Department of Pre-Crime, which can put you on ice forever, without trial, for something you haven’t even thought about doing yet. We can shudder at the irony, and the complexities embedded in it, because that’s precisely where we imagine the country to be headed. We have a president who has already made de facto law of the principle that he can kill anybody he thinks is a threat to the nation’s security. Without warrant. Without probable cause. Without so much as a kangaroo court hearing.

But. We sure don’t act like we care. Nobody’s marching. Nobody’s resisting. We keep on voting for people we know we can’t trust.

Maybe that’s because we think Obama is right. Maybe we do trust him, based on the evidence we have seen, which lends plausibility to the posit that this is necessary.

Maybe we approach the security line and do some quick calculus. Maybe we conclude that a slightly twisted TSA perv seeing an x-ray of Mr. Happy isn’t as bad as hitting a large building at several hundred miles per hour and being instantly incinerated. Maybe groping and gate-rape isn’t as bad as the final few minutes of exquisite terror you feel when you know you’re going to die and there’s nothing you can do about it.

Maybe the president’s extra-legal shenanigans have already saved thousands of American lives and we don’t know it. That’s the thing about prophylactic measures – they’re hard to quantify. Maybe some of the citizens targeted in drone strikes, had they not been killed, would have gone on to successfully execute dramatic terror strikes here on American soil or against our fellow citizens traveling abroad. Understand that this is entirely plausible. The government may even know, for a fact, that it has accomplished these sorts of successes, but cannot, for a variety of reasons, reveal the details.

Maybe the US Constitution, which was assuredly not designed with high-tech global terror in mind, simply is not compatible with the realities of contemporary society.

Discuss…