Transterrestrial Musings

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Sam, I think you put it in perspective very nicely - "Who gets to designate who is an enemy."

I think that the thing the founders feared the most was tyranny, and that we prevent that by separation of powers and checks and balances. It's not meant to be the government of a great world power, it's meant to be the government of a republic of free men and women.

So, any system that is based on "trusting the President to keep me safe" is just another form of monarchy, and on principle I oppose it.

Well said. Thanks.

Posted by Jane Bernstein at January 21, 2006 09:59 AM

A couple of comments on Sam’s thesis.

1. What was the nature of the “tyranny that eighteenth century Americans died to vanquish?” I would suggest that it was, at its core, the tyranny that people, legislators and executives, that did not represent the colonies were making the rules. Remember the colony’s biggest complaints were, taxes, abolishing of colonial governments, and the forced support of the British military on site.

Sam is suggesting that a present day “unchecked executive” is the exact equivalent. Is it? Two points. First, the current executive was chosen by us, whether we like it or not, as were the members of congress. Second, unlike George of 1776 fame, this George will be gone in about two years. We can pick someone who can change the rules, both in 2006 and 2008. The colonies had no such option.

2. The core of Sam’s argument seems to be the cost benefit analysis of actions taken to ensure security as compared to the value of human life. I might be prepared to accept that if someone can give the cros over point. To use the question that Lincoln faced, “at what point does the preservation of the union outweighed the loss of some liberties?” We have to be clear that, in a very real sense, preservation of the union may be the question. What would, for example, be the consequence, if tomorrow, Manhattan Island became uninhabitable for a 1,000 years? Does the prevention of that approach the crossover point?

3. Sam’s use of the analogy of the revolutionary soldier’s willingness to die for freedom may be trying to say that no amount of deaths can justify any lose of liberty. I am not sure that works, because, the actual number of those with that level of commitment was extremely small even in those times. Many opposed the declaration of independence (Ontario Canada was largely settled by some of them), others, maybe the majority, simply waited it out to see who won. What would be the true correspondence to this analogy in today’s issue?

Posted by Gene at January 21, 2006 10:17 AM

It would seem that Sam's argument sets up a strawman -- that wiretapping will be used for non-warfighting aims -- therefore, his argument goes, we should fight this war without wiretaps (or only those adjudicated through courts and the NYTimes).

Is abuse of wiretaps possible? Yes. Is there any evidence that wiretaps have been used for anything but finding terrorists? (beside the Clinton administration's FBI filegate I mean) If you've got some evidence, then pony up, and we can deal with that issue. If you don't then you are arguing a strawman that is hurting our war effort and helping the terrorists.

The civil libertarian position in this case is clearly self-destructive. We simply cannot allow our society to hog-tie our forces while a well organized, well funded, vicious, racism, homophobic, baby-killing, head-chopping, mass murduring, suicide bombing, death cult is allowed to freely communicate.

9/11
Beslan
7/7
3/11
Bali
...

Get your priorities straight.

Posted by Fred K at January 21, 2006 11:19 AM

A start to protect civil liberties would be to bar information gathered in warrantless searches from being used as evidence in a criminal prosecution.

We already have that, Sam. Evidence gathered from a warrantless search would already be excluded under existing law and precedent. But I doubt that anyone would complain if intel gathered from a warrantless search was used to prevent the nuking of a major American city (well, Michael Moore might, particularly if that city obviously deserved it because it voted for Bush). Or would the ACLU file an injunction demanding that the plot be allowed to go forward because no warrant was obtained?

Say, there's an idea for a parody...

Posted by Rand Simberg at January 21, 2006 11:35 AM

costs vs benefits

" Perhaps we should be willing to give up a few of our much more dear lives as the price to pay for continuing liberty."

Am I to understand that Sam believes the costs of the current intelligence gathering methods (in lost liberty or whatever) outweigh the benefits of avoiding another 9-11 attack? Because that is the real cost vs benefit issue at stake here. Those are the real world examples. And it's important to keep in mind that America got lucky in the scale of the casualties we suffered from the collapse of the WTC towers. It's conceivable we could have lost around 50,000 people dead instead of only 3,000 people.

And another thing, belittling the 9-11 attacks by comparing them to the overall American death rate is not a convincing arguement. No doubt even the atomic bombing of Hiroshima was a minor component of the overall Japanese death rate during 1945, but that hardly minimizes the devastating nature of the atomic bombing of Japan.

Posted by Brad at January 21, 2006 11:57 AM

"Is there any evidence that wiretaps have been used for anything but finding terrorists?"

In Check the Wire, I talk about spying at Watergate and on the Sec'y General of UN as evidence of potential for abuse of unchecked wiretaps.

Was Jose Padilla an unlawful combatant of our enemy?

"Am I to understand that Sam believes the costs of the current intelligence gathering methods (in lost liberty or whatever) outweigh the benefits of avoiding another 9-11 attack?"

The cost of our intelligence gathering methods outweigh the marginal value of maybe avoiding another 9-11 attack. If we save a handful of lives a year and inherit a war without end and a hunt for citizen collaborators, that's not a good trade.

There will be no next 9-11. There are many in every plane who will stop the next who try another airplane hijacking.

As for preventing future atrocities, what will we get in the wiretaps that couldn't pass muster with the courts? Compare that to the ability to pick out a political enemy and constantly monitor them. That sort of unchecked surveillance could disrupt the democratic process.

We can monitor the bad guys talking to the US citizens (and the bad guy US citizens) with normal law enforcement methods.

Posted by Sam Dinkin at January 21, 2006 12:22 PM

We can monitor the bad guys talking to the US citizens (and the bad guy US citizens) with normal law enforcement methods.

It's easy to say (or write) this, Sam, but it doesn't make it true.

Posted by Rand Simberg at January 21, 2006 12:28 PM

The trade-off between liberty and national security. A start would be to prohibit the government from collecting any information about anybody unless it is an issue of national security or an actual transgressive crime is involved (i.e. robbery, rape, murder, etc.).

Posted by Kurt at January 21, 2006 12:31 PM

A example the DoJ trying to get search data from Google for this DOMA law. Google should have the balls to tell the government, that unless this is a case of national security and our lives are being threatened by terrorist, to take a hike.

Another start would be to decriminalize anything act that does not involve transgressive anti-social behavior against another individual (i.e. the idiotic war on drugs). Prohibition I never worked. Why are we dumb enough to think that Prohibition II will work any better?

The government needs to be reformed so that it cannot be used as a tool to promote socio-political agendas that have nothing to do with protecting us from terrorism and tyrannical threats to us.

Posted by Kurt at January 21, 2006 12:32 PM

"'We can monitor the bad guys talking to the US citizens (and the bad guy US citizens) with normal law enforcement methods.'

It's easy to say (or write) this, Sam, but it doesn't make it true."

What you write (or link) doesn't make it false. Have FISA repealed and replaced with a lower standard if it is so bad. Who have we caught with a warrantless search of a US citizen?

Posted by Sam Dinkin at January 21, 2006 01:04 PM

"There will be no next 9-11. There are many in every plane who will stop the next who try another airplane hijacking."

Who is to say they will use airliners the next time?

Posted by Mike Puckett at January 21, 2006 01:30 PM

Have FISA repealed and replaced with a lower standard if it is so bad.

Then argue for that. I don't hear much of a clamor for it. All I hear is (mostly anti-Bush, since there were few complaints about it when the Clinton and other past administrations did it, when we weren't at war) whining about civil liberties, demands for injunctions or impeachment, and few proposals other than that we stop listening in on conversations with Al Qaeda that have one end in the country.

Posted by Rand Simberg at January 21, 2006 01:56 PM

"'Have FISA repealed and replaced with a lower standard if it is so bad.'

Then argue for that."

I am arguing for checking the wire. I do not see any benefit for unchecked wire taps. I am not for revising FISA, because I don't see the benefit to lowering the bar for approved searches even lower. (How many searches did FISA deny?) We're paying a lot of taxes and we have a lot of credit. Can't they have someone fill out some templates in advance and have someone standing by full time to seek FISA warrants?

Posted by Sam Dinkin at January 21, 2006 02:17 PM

Can't they have someone fill out some templates in advance and have someone standing by full time to seek FISA warrants?

The people who are doing this say no, because it would require lots of somebodies, and lots of judges. It's certainly not a cost I'm willing to pay as a taxpayer.

FISA needs reform, because it's based on antiquated technologies. That's the discussion we should be having, instead of whether or not we've sacrificed our "liberties," or are living in a police state, or whether or not Bush should be impeached.

Posted by Rand Simberg at January 21, 2006 02:40 PM

"FISA needs reform, because it's based on antiquated technologies."

What do you suggest? A 'Carnivore' (The Reno Justice Department invention for recording internet traffic) for all international calls that are escrowed and searched for known voiceprints and code phrases from calls from known bad guys? Can we trust the escrow guys to leave any privacy for the non-hostile public? Or are you happy to give up those "'liberties'" for a quest for an elusive perfect cocoon of safety.

Posted by Sam Dinkin at January 21, 2006 03:13 PM

Don't confuse privacy with liberty, Sam.

This confusion alone is worth another TCS piece, methinks.

Posted by Rand Simberg at January 21, 2006 03:47 PM

Sam says:

Who have we caught with a warrantless search of a US citizen?

A: While he isn't a US citizen, we did catch Ahmed Ressam because of a warrantless search by a border patrol agent.

Actually, I would not be surprized if this isn't the case already. Why haven't we had (seemingly) an attack within the CONUS since 9/11? I really doubt the TSA has prevented it.

I'd unabashedly monitor suspects and anyone that fit the profile of the suspects including (but not limited to) religion, race, national origin, and gender. I'd bring in responsible monitors from the congress and judicial branch, as GWB has done.

The important distinction here is why the monitoring is taking place. War. I would be in agreement with Sam's civil liberties approach (limits on valid searches) for any law enforcement type issue.

Posted by Fred K at January 21, 2006 04:40 PM

"How many searches did FISA deny?"

Only four:

http://www.epic.org/privacy/wiretap/stats/fisa_stats.html

It's rather ridiculous to make the case, as The Weekly Standard does, that FISA is onerous to law enforcement when so few warrants are rejected.

"The people who are doing this say no, because it would require lots of somebodies, and lots of judges. It's certainly not a cost I'm willing to pay as a taxpayer.

FISA needs reform, because it's based on antiquated technologies."

Gonzales has stated that they considered asking for a reform of FISA, but decided that it was too difficult, so they chose to ignore it instead.

Put another way, the law got in the way of what they wanted to do and reform was hard, so they chose to ignore the law.

Posted by Tom Shembough at January 21, 2006 05:08 PM

Put another way, the law got in the way of what they wanted to do...

If there were only four requests for FISA warrants refused, how was the law getting in the way?

The explanation I've been seeing is, the activities people are all up in arms about, don't seem to be prohibited by FISA.

Posted by McGehee at January 21, 2006 05:30 PM

Jane Bernstein: "So, any system that is based on 'trusting the President to keep me safe' is just another form of monarchy, and on principle I oppose it."

Let's see. The Constitution--which has not been replaced by anything--says: elect the President every 4 years, 2 term limit, Congress can override his veto or impeach him, Supreme Court can declare a presidential action unconstitutional and non-binding. This is the "form of monarchy" you oppose "on principle".

The absurd escalation of rhetoric such as this only shows what a bunch of drama queens liberals have become.

Posted by Jim C. at January 21, 2006 07:32 PM

Actually, it's 'omnivore' I am worried about, not carnivore. As for Ressam, profiling at border crossings seem reasonable, but this may have just been caution. We have given up expectations of privacy at the airport (and the ability to keep our pants up with metal fasteners). Doing so at the border is also reasonable. That sort of search cannot turn into a tyranny tool if it is monitored carefully enough (i.e., no ability for customs inspectors to slip items into people's garments) and unlike TSA, Customs selectively bothers only international travelers leaving plenty of room for domestic dissent. As I concede do systematic monitoring of international phone calls. I have never argued that the lost privacy is a great harm, but neither is the monitoring of the extra calls a great way to protect life. But if there is a bureau that is no longer swearing to support the Constitution and is instead doing what it pleases without review, then how can I be assured that they are abiding domestic surveillance restrictions? Domestic habeas corpus? Annoying antiquated information gathering rules are a canary in the coal mine that are the first line of defense to keep the executive checked.

"The absurd escalation of rhetoric such as this only shows what a bunch of drama queens liberals have become."

It is a conservative stance to seek that activist executives don't become law unto themselves.

Posted by Sam Dinkin at January 22, 2006 12:26 AM

Want to complain about the loss of civil liberties after 9/11? Then I blame the democrats, and especially, "What did he know, and when did he know it?" Hillary Clinton.

After 9/11, the Bush Administration went after the terrorist. A month after, we were invading Afghanistan. Just over a year later, we were invading Iraq. Bush didn't do wiretaps, he prosecuted a war.

However, the Democrats played politics and demanded a 9/11 Commission to determine how the US government failed us on that day. The result of that Commission is a document that suggests our government didn't follow up on intelligence and investigate legal immigrants taking classes on US soil. Democrats then insisted that the President should heed the 9/11 Commission report and implement all its findings.

So now Democrats are complaining about warrantless wiretaps of individuals on US soil talking with known enemies on foreign soil during a time of war. They claim this is against the civil liberties of all Americans and should be outlawed.

It is amazing to me the effort in which Democrats will go to regain power, while ignoring the implications of there efforts in gaining power through votes. The vast majority of Americans don't run to the ACLU, because they lost the liberty of calling up their pal Osama in Tora Bora. Yes, it is a loss of liberty, but I don't think even Patrick Henry was a big fan of anarchy. But alas, the Democrats, like Conyers, may have an opening to try passing Articles of Impeachment against the President. Odd, this is the same party that said that would backfire in 1998. Well... we will know this attempt backfired when Fred K's list gets 1 line longer.

Thus, I believe on the issue of Impeachment, Bush is quietly saying, "Bring it on!". If the Democrats are so crass, I'm sure we will discover the Powers granted the President in Article II are in play, thanks to Congress decision to appropriate funds to prosecute the war on terror. Then we will discover a new Republican landslide in 2006 and 2008.

I for one would hate that. There are plenty of other domestic issues to hold against Republicans.

Posted by Leland at January 22, 2006 08:25 AM

Impeachment is a serious overreaction. Wiretaps and other methods that don't suit law enforcement are a matter of style and purity. If you don't like killing, vote to invoke the War Powers Act or cut bucks to the Pentagon.

A large bipartison majority called to take the gloves off after 9/11, break down barriers between CIA and FBI, remove limits on foreign assassination, hold unlawful enemy combatants without bail and so on. I recommend rethinking those tactics and settling in for a 20-50 year war. We can and should win the war without resorting to dirty methods. There may be a cost, but there will be a countervailing benefit of keeping an enviable set of laws to defend. Upholding the law delegitimizes those who do not. It strengthens our moral superiority to those we criticize for not following the rule of law.

It is sharply revisionist to criticize Bush and his team for doing what a large bipartisan majority called on him to do. But perhaps it is time to raise a bipartisan majority to ask him and everyone else to stop with the omnivores and the wire taps and stick to targeted searches. There will be a cost in security, but it will likely be low and perhaps there will be a benefit. Searching for perpetrators before they commit a crime brings us into the world of Minority Report. Part of innocent until proven guilty is the willingness to let bad guys kill some innocents to avoid the state killing them and delegitimizing itself in the process. We may need to tolerate thousands of preemptive killings (mostly by hunger when we isolate rogue regimes) to stop nuclear and biological warfare, but isn't the security benefit of holding a random footsolder in camp xray less than the cost in coin and legitimacy? Does keeping them for life help us?

It does not mean we should let our guard down. But fight inside the rules.

Posted by Sam Dinkin at January 22, 2006 08:53 AM

But perhaps it is time to raise a bipartisan majority to ask him and everyone else to stop with the omnivores and the wire taps and stick to targeted searches. There will be a cost in security, but it will likely be low and perhaps there will be a benefit.

I agree with this. However, I do not believe that now is that time. The next battle is brewing in Iran. I'm not suggesting a link to Iran and AQ, but if I was AQ, I would use the opportunity Iran provides to my best advantage. While the world works through the UN Security Council (maybe) to stop Iran, why not stir the pot?

As many have noted, OBL's latest offerring reads a lot like MoveOn.org. He knows what rhetoric is, if nothing else, being accepted as somewhat rational, such as over extension of our forces. Drop a target in the US again, and President Bush has to answer for his lack of home security, a war in Afghanistan without killing OBL, a war in Iraq, and if (and how) he plans on dealing with Iran. That's a precarious position that, while great for Democrats, is bad for America in general.

I think we can afford to keep our guard up for a little longer. Wars tend to have their "Battle of the Bulges" just prior to ending, as the enemy tries a last desperate attempt. I think we are almost there. And then we can quit rationing food and metals, or rather make phone calls to our pals in Tora Bora.

Posted by Leland at January 22, 2006 10:27 AM

Sam,

I've got to hand it to you for defending the civil libertarian position. I always found it challenging in debate class taking on the opposition position and making sound and compelling arguments in its favor.

I doubt that any of the "take the gloves off" folks on this thread want the gov't monitoring communications in general. I bet we all acknowledge the part of your argument that giving the gov't the power now to monitor may lead to abuses and misuses in the future. We might even end up setting a precident that protects the executive from prosecution for such misdeeds. And that would be collaterial damage indeed.

While we acknowledge the argument, our position is that war fighting already breaks the rules of our civil society. Killing people violates their rights (and I am talking about US soldiers killing people) and yet that is recognized as a valid action by the US constitution and international law. If we are killing people, doesn't it make sense that we would also take other actions short of that to defeat our enemies?

Posted by Fred K at January 22, 2006 10:47 AM

Libertarian critics of state power waste their energy attacking the intelligence gathering methods used fighting Al-Queda. Not only is such criticism counterproductive, the critics also waste a priceless opportunity to attack the much more harmful to liberty policies of the War on Drugs, the War on Porn, and the War on Guns; because international-terrorism is a real threat and a real danger that really needs the application of state power, wheras the various 'Wars on..." waste state power by prosecuting criminals with no victims.

Posted by Brad at January 22, 2006 12:07 PM

Brad gets it 100%

Posted by Mike Puckett at January 22, 2006 12:37 PM

I have made progress. I have graduated from liberal waste to libertarian waste.

The war on porn is pretty much over. I lost a bet that guns were going to be the next cigarette class action. With the Taliban out of the way, the war on drugs has been conceded (not to mention Chavez and his Bolivian bud).

It is so rare that Rand and I disagree on anything, I thought we should debate it.

Posted by Sam Dinkin at January 22, 2006 05:17 PM

It is so rare that Rand and I disagree on anything, I thought we should debate it.

Well, it's kind of refreshing to have a little dissension within the blog. Maybe we can get a point-counterpoint thing going to up the ratings.

"Sam, you ignorant slut..."

Posted by Rand Simberg at January 22, 2006 06:57 PM

"point-counterpoint" It works for Becker Posner.

Posted by Sam Dinkin at January 22, 2006 07:10 PM

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