Tuesday, January 03, 2006

Of Laws, Men and the NSA

President Bush has been using the first person (singular and plural) quite a bit in defense of his authorization of possibly illegal warrantless monitoring of communications within the U.S. by the National Security Agency (historically charged with monitoring overseas communications for intelligence-gathering purposes). Here he is on Sunday, Jan. 1:

"I think most Americans understand the need to find out what the enemy's thinking, and that's what we're doing. They attacked us before, they'll attack us again if they can. And we're going to do everything we can to stop them."

"This program has been reviewed, constantly reviewed, by people throughout my administration. And it still is reviewed. Not only has it been reviewed by Justice Department officials, it's been reviewed by members of the United States Congress. It's a vital, necessary program."

"The NSA program is one that listens to a few numbers. In other words, the enemy is calling somebody and we want to know who they're calling and why."

But in a free society the duty of the citizen is to read that last remark as "In other words, I assert that the enemy is calling somebody and we want to know who they’re calling and why." It is not enough for the President to ask us to trust that he is doing the right thing, and thus to accept it. Nor is it even enough to assert that officials in his administration or even Congress have reviewed and cleared it. (The latter assertion is probably debatable.) Because we have known for centuries that a pillar of free societies is that the executive must ultimately be answerable to the judiciary. Even if the President is behaving honorably (and we should not expect his domestic opponents to accept that on his say-so), some, maybe most presidents will not. To evade judicial oversight is to set a miserable precedent, which is why the public reaction during the 1970s after the Church Committee hearings (conducted by the Senate into intelligence abuses in a conflict against the Soviet Union, a far more dangerous adversary than the jihad) was so dramatic. This is also why the Fourth Amendment language is so uncompromising:
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.

The most troubling thing about the warrantless searches is that the act of getting a warrant is by all accounts not particularly difficult. Procedures for judicial authorization of interception of communications inside the U.S. were set up in the late 1970s after the aforementioned hearings. And the special panel of federal judges set up to authorize such warrants apparently does not set the bar very high, approving almost all requests that come before it. Undoubtedly many supporters imagine a nightmare world in which judicial dithering prevents the prevention of some imminent WMD attack on the U.S. But it is conjured fear such as this that is the greatest threat to freedom.

Defenders of the President argue that it’s war, and the tradeoffs between liberty and security when gathering intelligence during war are different from those in criminal prosecution. But this is a war like no other. It will not end with the clarity of Osama Bin Laden surrendering on the Missouri. As the President himself noted shortly after Sept. 11, it will be a long struggle (the Cold War lasted roughly forty years) against an ideology rather than a nation, a war whose end may not even be clear to us when it happens. It is in circumstances like this that permanent encroachment of the state upon basic liberties is most likely, and that is what makes the President’s appeal to his fundamental decency most troubling. A free people cannot be asked to simply trust the executive, and even less so to trust all executives who might come down the pike over the next several decades. Even if they do (and some polling indicates there is no great outcry about this program), it is in times of perceived crisis that the terms of trade between liberty and security are so unfavorable, and thus then that diminishment of the former must be most strongly resisted.

The proper task for a citizen of this republic when thinking about the importance of what the President has done is to assess this tool in the hands of a possible future president whom he doesn’t trust. This is why we strive for a society of laws, not men. That standard makes it clear that this expansion of State power is a mistake.

Get a warrant.


Anonymous Libertarian Jason said...

Resounding applause!!!

3:14 PM  
Anonymous Jasper omolo said...

I am just concerned that the administration tends to manipulate facts and intelligence to fit its ideology. If what is being said in the media is entirely true. Legalisms and politics aside, I think the president also has some good points. He is not just being persuasive enough.

2:06 PM  
Blogger Libertarian Jason said...

I think that the whole point was that "being persuasive" isn't good enough. In fact, we should not allow ourselves to be tempted intobeing persuaded at all.

The cornerstone of a free society is that the State is held firmly in check by the rule of law. Any president that is "persuasive" enought o get the citizenry to overlook the law, and to let him get away with something he shouldn't be, should be distrusted even that much more.

6:47 PM  
Anonymous Jasper Omolo said...

Well said...Anyway, I would expect the president to err on the side of the law to say the least, otherwise he would be violating his oath of office. I also think that it would be interesting to watch what comes out of a congressional hearing in case one is launched. It looks like conservatives, liberals and libertarians have different take on this issue, and it honestly deserves further discussion. There is this question of presidential power.....I wish people would expore it further instead of resorting to party lines and usual political cliches..... I see nothing wrong with being persuaded by the leaders in order to support their policies, or at least understand what they are doing even if I happen to humbly disagree....There is just too much red herring going on from both sides of the isle and truth will continue to suffer..this being an election year..

2:01 AM  

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