Yes, the NSA wiretaps are illegal.
    Now forget that and talk Medicare.

Yes, the NSA wiretaps are illegal. Democratic politicians should now forget that and talk Medicare.

I’ve seen the Justice Department brief alleging legal justification for Bush’s NSA wiretaps. Its arguments look strained in the extreme, especially given that they depend on alleging implicit Congressional approval for what Congress explicitly rejected. (Hat tips, further argument, and a promise of more to come from ThinkProgress, here and here.)

Democrats are holding a “meeting” today (it’s not a “hearing,” and it can’t subpoena witnesses or documents, if the minority party calls it and the majority party declines to join in), hoping to gin up public attention on this. I hope they fail. Reality-Based people, listen up: THIS IS A LOSING ISSUE FOR US. The only poll I know of shows that people overwhelmingly favor Bush’s doing this. And while Mark Kleiman thinks that this will change if we pound the table about illegality and “a government of laws, not of men,” I harbor enormous doubts. I share Mark’s principled attachment to legality and his extreme distrust of Bush’s executive arrogation. But both are minority and elite tastes. Most people are more afraid of terrorists than of the NSA’s intercepting international calls that they won’t place anyway. And when facing a terrorist threat, most people want precisely a government of men, not laws: we’re primates, after all, and we Americans more primate than most. Anybody think that the “meeting” will sway more people than bin Laden’s latest threat? The Republicans are not afraid of this issue: they are salivating at the prospect of engaging it and already starting to do so with glee.

The other side is much better than we are at pounding away at the winning message and avoiding daily distractions. We are under the illusion that surveillance is the winning message. It’s not: it’s the distraction. The message is how massive corruption led Republicans to screw up the Medicare bill and kept your aunt from getting her medicine. The liberal blogs have repeated this message admirably (e.g. here, here, and here)—and I hereby repeat it again.

There are two confusions operating here. First is the confusion between what liberal activists care about and what the median voter cares about. We are right to care deeply about the threat to privacy involved here. Politicians, if they’re doing their jobs, will thank us for being right—and then lay aside that irrelevance and go back to what voters care about.

That’s the other confusion: between what citizens have a duty to speak out about and what politicians have a duty to run on. (In my work I’ve called this, maybe pretentiously, a “division of moral responsibility”; others use “division of moral labor” to mean something similar) The wrongness of NSA wiretaps and imperial presidentialism generally is a complex, abstract, long term issue—a perfect subject for agitation, education, and yes, blogging by intellectuals and activist groups with the interest and time horizons to keep plugging at a thankless cause.

But politicians are there to make good policies, which means gaining and keeping office, which means winning elections. Fruitless expression of outrage is not part of their job. Failure to engage in it is not a lack of courage (or if you prefer: that kind of courage is also not part of their jobs). If elected officials champion hopeless causes under the illusion that by doing so they can quickly change public opinion—that doesn’t happen—they serve us badly, not well.

Medicare screwups are universally known, concrete, and easy to link to the incumbents. Apparently, attacking them polls well. Let the party leaders do what they’re supposed to: not holding meetings that everyone will surf past, but making sure that the next time it’s a hearing, not a meeting.

Author: Andrew Sabl

Andrew Sabl, a political theorist, is Associate Professor of Political Science at the University of Toronto. He is the author of Ruling Passions: Political Offices and Democratic Ethics and Hume’s Politics: Coordination and Crisis in the History of England, both from Princeton University Press. His research interests include political ethics, liberal and democratic theory, toleration, the work of David Hume, and the realist school of contemporary political thought. He is currently finishing a book for Harvard University Press titled The Uses of Hypocrisy: An Essay on Toleration. He divides his time between Toronto and Brooklyn.