December 20, 2005
Surveillance
Well, the big news in the blogosphere, on all sides, is the Bush wiretap problem. The Dems are yelling “impeachment!”, the Reps are circling wagons and staying silent, and we libertarians are in a quandary. It’s a matter of first determining whether the actions were legal, and second determining whether they step on civil liberties considering the wartime threat we face.
As to the first question, of legality, I can’t claim to understand this anywhere near well enough to explain it. I’ll pass off that to Orin Kerr of the Volokh Conspiracy, who comes to the conclusion that Bush’s actions were probably Constitutional, but also probably illegal under FISA. I’m not one to think any administration is above the law, so if this is legitimately illegal and blows back at Bush, he seems to deserve it. The little analysis I’ve seen shows that rather than following FISA and making sure that there was some sort of judicial review of his actions, he just authorized wiretaps and didn’t bother with FISA. After watching Bush for 5 years, he certainly seems to believe he has nobody to answer to with anything he does, so I wouldn’t be surprised if his own king-complex has gotten the better of him.
But what I’d like to focus on is the moral issue. Is this sort of behavior consistent with the sorts of civil liberties we enjoy as Americans? And being a pragmatic pro-defense libertarian, I have to ask whether the balance between defense and civil liberties has been tipped too far.
And in this case, I have to believe that we’ve crossed the line. Listening to Boortz today, it seems many of the people e-mailing him have taken the “If you’re not doing anything wrong, why would you care”, or “If you’re not a terrorist, you have nothing to worry about”. And with what this administration is doing, that’s probably true. I doubt that the government under Bush has the desire to go after anybody beyond terrorists. I don’t think that Bush is going to use this to go after political opponents, or use it to infringe upon our own liberties on issues unrelated to terrorism.
But the precedent that would be established is too dangerous to accept.
I’m not so worried about Bush. Even as much as I think he’s an ineffective bumbler, and works tirelessly to expand executive authority, I don’t think he’s a bad guy. I don’t think he’s the kind of person who would abuse this sort of power unless he thought it was absolutely necessary to our national security. But it’s not Bush that I have to be worried about. What worries me is this precedent 10 or 20 years down the road.
Think about the days when the War on Drugs was launched. Just how much increase have we seen in police power due to the war on drugs? How many people have had their cars searched with no probable cause because a policeman has said he “smelled something”. Reason has interviewed several former drug cops who are now against the War on Drugs, because they see the damage it has done to police forces and civil liberties. By changing the priorities for police departments, they’ve also allowed dangerous people to roam the streets while cops go after nonviolent drug offenders. And the increase in police power? It’s not going away, even if we end the war on drugs. Because now we have the War on Terror.
So let’s look at the possible implications of wiretaps issued by the executive branch and the DoJ without judicial oversight. I’m not a terrorist, and have no ties to terrorists, so I wouldn’t expect the DoJ to come after me for something like that. But I am politically active. It doesn’t take much for the government to harass you just enough to make life a living hell, even if they never take you to court or try to convict you for anything. Two presidents down the road, is it that hard to believe that we could see some politically-motivated wiretaps? After all, we’ve already had allegations that our last president targeted people for IRS audits to settle political scores.
As Ayn Rand said, “The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” It is nearly impossible to make it through a day in the United States without breaking laws. So what happens when you give police and the executive branch nearly unlimited search powers? You give them arbitrary ability to look into your life without probable cause and catch you for things that are criminal not because they violate anyones rights, but are only criminal because government didn’t have enough laws.
International terrorism is a dangerous beast. And our government needs tools at its disposal to fight the threats we face today. Questions of whether or not certain aspects of FISA or the PATRIOT act are overreaches of authority our valid, but what really scares me is not the power itself, it is the ability to wield it arbitrarily. Once we allow government great powers wielded at the “discretion” of one or two people in the executive branch of the DoJ, we must fear their motives at all times. Government power with a certain level of transparency and accountability can be fought and managed. Arbitrary and total government power, wielded by an unaccountable few, simply cannot be tolerated.
The Unrepentant Individual linked with Carnival of Liberty XXVI
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The Unrepentant Individual linked with Carnival of the Vanities #170
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Troubling Tapping
President Bush has admitted that he authorized the NSA to act outside the law with regards to domestic wiretaps, a fact that the New York Times has been widely criticized for reporting. Personally, I think that (for once) the Times did the American p…
Brad, Did you go read this: http://www.sparkpod.com/cgi-bin/WebObjects/sparkpod.woa/wa/view?1021127
I wonder what you will say when someone with a dirty bomb comes to Atlanta, or anywhere for that matter, and kills 50,000 people? Will people scream, Why didn’t you know this was coming? Why didn’t you protect this country? It is a slippery slop, this wiretapping, and it is hard to say what is right.
Carnival of the Vanities 170
It’s that time of year again. The holidays are upon us, and the internet will soon slow to a crawl as bloggers of all faiths spend more time with their families, take vacations, or just sit back and relax. But…
Lucy,
I have learned a little more about the situation, and to some extent, if this were only used as an intelligence-gathering expedition, and never as a start of criminal prosecution, I could accept it.
But it appears that Bush may have used the information learned here not only as a tactical intelligence-gathering tool to stop foreign attacks. It appears that he has used the information gained here to then obtain FISA warrants. This means that the FISA warrants are not being generated on legitimate probable cause, because the probable cause is based upon essentially an unreasonable search.
Think of it this way: a cop pulls you over, asks you to step out of the car, never obtains consent or a warrant to search your vehicle, but opens the trunk and finds a bank statement that indicates a lot of money flowing through your account. He uses this bank statement to obtain a search warrant to look into your financial dealings, and finds out that you’re laundering money. That evidence should be inadmissable, because the probable cause to search your financial records was obtained illegally.
What we’re seeing is exactly this. Bush purportedly has used illegal methods to obtain information as the probable cause to obtain illegitimate searches and warrants. To then use any information obtained in those warrants for criminal prosecution would be wrong. I can understand using it to stop impending attacks, but it seems that what is going on may be more sinister.
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Actually, that search very well might be valid. I did some digging on car searches a while back when my friend got pulled over, and the police are allowed to search any part of the car “in plain view” during a traffic stop, without consent or a warrant. “In plain view” has been determined to include the trunk. As for probable cause, well, you were acting pretty suspicious, so that cop just had to search your car.
Sorry to hijack the post, just felt like I’d point out another one of our civil liberties that is being eroded away.
Carnival of Liberty XXVI
Welcome to Carnival of Liberty XXVI, smack in the heart of the holiday season.
But first, a few preliminaries.
This carnival is primarily, though not exclusively, the work of the Life, Liberty, Property community, and I’d like to thank its fou…
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