A CARD-CARRYING CIVIL LIBERTARIAN

IF Barack Obama wins in November, we could have not only our first
president who is an African-American, but also our first president
who is a civil libertarian. Throughout his career, Mr. Obama has been
more consistent than Hillary Clinton on issues from the Patriot Act
to bans on flag burning. At the same time, he has reached out to
Republicans and independents to build support for his views. Mrs.
Clinton, by contrast, has embraced some of the instrumental tacking
of Bill Clinton, whose presidency disappointed liberal and
conservative civil libertarians on issue after issue.

Mr. Obama made his name in the Illinois Legislature by championing
historic civil liberties reforms, like the mandatory recording of all
interrogations and confessions in capital cases. Although
prosecutors, the police, the Democratic governor and even some death
penalty advocates were initially opposed to the bill, Mr. Obama won
them over. The reform passed unanimously, and it has been adopted by
four other states and the District of Columbia.

In the Senate, Mr. Obama distinguished himself by making civil
liberties one of his legislative priorities. He co-sponsored a
bipartisan reform bill that would have cured the worst excesses of
the Patriot Act by meaningfully tightening the standards for
warrantless surveillance. Once again, he helped encourage a coalition
of civil-libertarian liberals and libertarian conservatives. The
effort failed when Hillary Clinton joined 13 other Democrats in
supporting a Republican motion to cut off debate on amendments to the
Patriot Act.

That wasn't the first time Mrs. Clinton tacked to the center in a
civil-liberties debate. In 2005, she co-sponsored a bill that would
have made it a federal crime to intimidate someone by burning a flag,
even though the Supreme Court had struck down similar laws in the
past. (Mr. Obama supported a narrower bill that would have satisfied
the Constitution.) And Mrs. Clinton opposed a moderate proposal by
the United States Sentencing Commission that would have retroactively
reduced the draconian penalties for possession of crack cocaine -- a
proposal supported by Mr. Obama, and by liberal as well as conservative judges.

The real concern about Hillary Clinton's record on civil liberties is
that her administration would look like that of her husband. Bill
Clinton's presidency had many virtues, but a devotion to civil
liberties was not one of them. After the Oklahoma City bombing, the
Clinton administration proposed many of the expansions of police
power that would end up in the Patriot Act. (They were opposed at the
time by the same coalition of civil-libertarian liberals and
libertarian conservatives that Mr. Obama has supported.) The Clinton
administration's tough-on-crime policies also contributed to the
rising prison population, and to the fact that the United States has
a higher incarceration rate than any other country.

Hillary Clinton's conduct during the Clinton impeachment does not
inspire confidence in her respect for privacy. Kathleen Willey, one
of the women who accused President Clinton of unwanted advances,
charges in a new book that Mrs. Clinton participated in the smear
campaigns against her. A federal judge found that the Clinton White
House had "committed a criminal violation" of Ms. Willey's privacy
rights by releasing her private letters. (An appellate court later
criticized the judge's "sweeping pronouncements.")

Whether Hillary Clinton's administration would, in fact, look like
Bill Clinton's on civil liberties is hard to judge. In many areas,
she has demonstrated an impressive commitment. She proposed a privacy
bill of rights that would require consumers to "opt in" before their
commercial data is shared and would allow them to sue companies for
the misuse of data. She has called for the resurrection of a federal
"privacy czar" who would balance the privacy costs and benefits of regulations.

She made an eloquent speech in the Senate opposing the suspension of
habeas corpus. And she has emphasized the importance of Congressional
oversight of executive power, promising as president that she would
consider surrendering some of the authority that President Bush
unilaterally seized. Clearly, she would be immeasurably better on
civil liberties than George W. Bush.

But Mrs. Clinton's approach to the subject is that of a top-down
progressive. Her speeches about privacy suggest that she has
boundless faith in the power of experts, judges and ultimately
herself to strike the correct balance between privacy and security.

Moreover, the core constituency that cares intensely about civil
liberties is a distinct minority -- some polls estimate it as around
20 percent of the electorate. A polarizing president, who played
primarily to the Democratic base and refused to reach out to
conservative libertarians, would have no hope of striking a sensible
balance between privacy and security.

Mr. Obama, by contrast, is not a knee-jerk believer in the
old-fashioned liberal view that courts should unilaterally impose
civil liberties protections on unwilling majorities. His formative
experiences have involved arguing for civil liberties in the
legislatures rather than courts, and winning over skeptics on both
sides of the political spectrum, as he won over the police and
prosecutors in Chicago.

As a former grass-roots activist, Mr. Obama understands the need to
make the case for civil liberties in the political arena. At a time
when America's civil-libertarian tradition has been embattled at home
and abroad, his candidacy offers a unique opportunity.