On Wire Taps, Freedom And Order
By Justin Gardner | Related entries in The War On TerrorismGeorge Will wrote a column that came out today, and he asks a very common sense question: why didn’t he ask congress?
Without more information than can be publicly available concerning threats from enemies operating in America, the executive branch deserves considerable discretion in combating terrorist conspiracies using new technologies such as cell phones and the Internet. In September 2001, the president surely had sound reasons for desiring the surveillance capabilities at issue.But did he have sound reasons for seizing them while giving only minimal information to, and having no formal complicity with, Congress? Perhaps. But Congress, if asked, almost certainly would have made such modifications of law as the president’s plans required. Courts, too, would have been compliant. After all, on Sept. 14, 2001, Congress had unanimously declared that “the president has authority under the Constitution to take action to deter and prevent acts of international terrorism,” and it had authorized “all necessary and appropriate force” against those involved in Sept. 11 or threatening future attacks.
The more and more I read about Bush’s tactics after 9/11, the more and more I feel like I’m living under a President who truly thinks he’ll be judged by history and couldn’t give a damn about what these policies are doing in the here and now. Part of me understands this logic, but I also understand the logic of going into Iraq. That doesn’t mean I agree with either policy. And I’ve always been wary of those who would simply let the realities of the day be damned in the name of more protection and more freedom.
Yes, Denise’s opinions about wire-tapping made me cringe, but they also opened my eyes even wider to the reality that many Americans would gladly give up some of their civil liberties when their leaders tell them it would make them safer. I’m not going to pull out quote after quote from past world leaders who’ve said this is a bad idea, but I wonder how many people like Denise truly feel like another terrorist attack is imminent? And if so, how many put complete faith in their leader because they feel powerless to do anything else?
And then I read over at Defense Tech about some former intelligence officers who are pretty upset about how far this Administration has gone in watching the American public.
A few current and former signals intelligence guys have been checking in since this NSA domestic spying story broke. Their reactions range between midly creeped out and completely pissed off.All of the sigint specialists emphasized repeatedly that keeping tabs on Americans is way beyond the bounds of what they ordinarily do — no matter what the conspiracy crowd may think.
But is this behavior any surprise from a political ideology that is built on the idea of maintaining order? Hardly. And 9/11 was a hell of a thing. Minds changed. Loyalties shifted. But have we redefined what freedom actually means? I fear we have and if we’re starting to walk down a path where our government can do whatever it please to whomever it wishes, all in the name of securing the peace and creating more freedom, then it’s not a matter of simply freedom not being free. Because now we’re slowly shifting from a world that’s less about freedom and more about order. That concerns me greatly.
What about you?
This entry was posted on Tuesday, December 20th, 2005 and is filed under The War On Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
December 20th, 2005 at 2:49 pm
The utility of totalitarianism in maintaining “order” (i.e. preventing terrorist attacks, stopping crime, exc.) should be historically unquestioned. Saddam is a great example of this.
The utility or public benefit of the Bill of Rights is far more abstract — idealism (rights) is hard to quantify in terms of finding hard casual benefits. The benefits are obviously there, but they tend to be negative benefits — like the Bill of Rights keeps us from living in a totalitarian regime. Proving a negative is hard to do.
This puts totalitarian policies at a natrual advantage, particularly after an event like 9/11, when fear and anger (emotionalism being the natural enemy of reason) is the primary motivator for public policy. Politicians, like Bush, obviously capitalize on the emotionalism. And from a political standpoint, it is the smart thing to do.
It is very possible that the illegal wiretaps executed by the NSA at the direction of Bush, stopped terrorist attacks and many peoples’ lives might have been saved. Of course, rounding up all Arabs and Arab-Americans in the United States and executing them, may in economic terms “save lives” too. If we have to kill 2 million Arabs in America and in so doing we kill the ONE would-be terrorist that WOULD have detonated a dirty bomb killing 3 million Americans, then the net benefit would be 1 million people. Are you disgusted yet?
Dictators and tyrants are created and survive off of catastrophy. This is the very reason that we have a written constitution — because it is at those times when we most need the government that we should be the most frightened of government.
December 20th, 2005 at 2:51 pm
I’m EXTREMELY concerned about the changes that have taken place since 9/11 – The Patriot Act, increased racial profiling, starting a war with another country – and now spying on american citizens.
Guess what people? All of these things, and unfortunately probably a lot more that we don’t yet know and may never know, are being done and have been done with “the threat of terrorism” as an excuse. And, I can almost guarantee that as long as people are buying it – the Bush Admin. will become more and more emboldened to push further and further.
I love how people actually buy that all this crap is done to make us safer. We are really not much safer now than we were 4 years ago. This administration has done almost nothing that the 9/11 Commission has recommended be done in order for this country to be safer. And yet, people in this country are letting Bush and his buddies do just about whatever they want in the name of protecting us. It seems that this administration has to do is say the word “terrorist,” and then everything they do is just SUPER!
What is really scary to me is that there are plenty of people who are not only OK with all of this, but are also THANKFUL!!!!!!!!!!!! After I read Denise’s post the other day, I am speechless. I don’t know anymore what to say to people who think this way. It makes me not even want to bother posting on this site or any other because I would have a more productive conversation about this stuff with my cats.
I wonder how all of you would feel if you became the target of some of this administration’s “safety measures.” You all might as well volunteer yourselves to be investigated – just in case you are a spy and don’t know it.
December 20th, 2005 at 3:03 pm
Justin,
Appears as if my post got a lot of folks’ collective blood aboilin’ … Nothing wrong with that, in fact I think it’s a healthy debate in which we are engaging.
My opinion relating to the surveillance conducted by the Bush administration referred to the type of circumstances that our nation was facing after 9/11.
The manner in which the story was being presented at the time did not provide acknowledgment of the factors that should be part of the equation (the aftermath of 9/11) when passing judgement on this administration’s actions.
If you continue to read through the remainder of the post, you’ll note that I asked for opinions as to how much latitude the Presidency should have in the future.
Like it or not, there’s enough grey in the circumstances surrounding this issue that pause and consideration should be given to the fact that we can’t have absolutes in either direction.
There needs to be a middle ground in policy where (when circumstances demand) there’s a mechanism by which information can be gained swiftly and discreetly in order to save lives.
December 20th, 2005 at 3:13 pm
I think a lot of people would agree wire taps on terroists is a good thing. A lot of people believe wire taps on innocent Americans is a bad thing. However, the really difficult thing is determing the innocent Americans from the terrorists. Our judicial system is built on escalating the interference of government as the crime becomes more probable. In this case, the executive branch of government has shortened the philosophical “escalating” phase, leaving just two groups of people: those we have decided to research, and those we haven’t. I’m not sure what distenguishes those groups.
December 20th, 2005 at 3:14 pm
Meredith,
The purpose of posting is to offer opinions and generate debate.
Why would you and others feel so threatened by an opinion that may differ from your own?
Ironically, you’re promoting an atmosphere of censorship when you express such extreme displeasure in the fact that there may be perspectives different from your own and rather than try to understand the basis, you try to smother them.
December 20th, 2005 at 3:43 pm
Meredith — Your cats, like all cats, are idiots and will add nothing to the conversation. They will probably be irritated that you even looked at them and proceed to piss all over the carpet — leaving the place ruined, smelling like cat piss.
Denise — I agree with this statement: “Like it or not, there’s enough grey in the circumstances surrounding this issue that pause and consideration should be given to the fact that we can’t have absolutes in either direction.”
In fact, the framers/founders of this great Nation were very much aware of the many grey circumstances that come up in the course of human existence and THUS, they created a system of checks and balances to deal with grey situations.
As George Will points out and Justin has brought to our attention — why didn’t he ask Congress? Why does it take the NY Times to undercover an issue/policy which goes directly to the heart of civil liberties? Whether the policy is constitutionally infirmed in debatable — although I think it is – but the arrogance of doing this covertly would be comical if it wasn’t so telling with regards to Bush’s views on his own power.
December 20th, 2005 at 3:50 pm
I had a similar reaction to your post from the other day as Meredith did. At first I was going to respond to it but then I thought it would be a waste of my time trying to understand why someone is happy that her government is spying on its citizens. In my mind, that isn’t a topic that is worthy of debate.
December 20th, 2005 at 5:17 pm
Blue Neponset,
Seldom is there a topic or situation that doesn’t have aspects which need to be fleshed out and are worthy of debate. By not even acknowledging that there may be more to the story or the issue, you are promoting a close-mindedness and arrogance that can be just as damaging as the invasiveness that you appear to fear.
December 20th, 2005 at 5:32 pm
In the original post, Justin asked whether post-9/11/2001 Americans are, in effect, redefining what freedom actually means. It’s quite possible that we are. At the very least, it seems to me that we are re-evaluating how much we really value that freedom as we have come to understand it.
In my comment for the biased-media thread from a few days ago, I submitted that the American people will ultimately keep their own counsel on whether the news media is biased. Well, here I’ll submit that the same is true with respect to freedom in American society, what it means, and whether it is tenable or even worthwhile in the context of this Long War (a term brought up on Donklephant recently, and that also seems to be catching on at a few other blogs).
That thought is admittedly a little unsettling. After all, the rights enumerated in the Bill of Rights were meant to stand for all time. But the Bill of Rights, like all other human law, is for people living in the here and now – and if the generations of Americans living in the here and now, for whatever reason(s), do indeed place less value in freedom as they understand it than they place in America’s security and/or societal integrity, then these things follow:
1) There will be a natural inclination to shrug off government’s Long-War-related encroachments, perhaps even blatant ones, on those freedoms that have been devalued. (Encroachments stemming from garden-variety law enforcement activity might still be vigorously opposed by the public, but only to the extent that no potential hindrance to the war effort is perceived.)
2) A new round of culture wars are likely to break out, as those who still openly value those freedoms devalued by the majority are likely to find themselves socially and/or politically marginalized or worse, especially if they take any concrete action to hold back security or other wartime measures for the same of preserving those devalued freedoms.
3) The standard libertarian meme about a public that devalues freedom in a time of crisis (that if they expect the deprivation of freedom to be as transitory as the crisis, they are probably in for a rude awakening) may not apply here. It may be just me, but my sense is that it’s slowly dawning on the American people that this Long War is quite likely to become just that – a multi-generational conflict, possibly much longer than even the Cold War. If this is true, the American people presumably know full well that whatever freedoms they yield now may not be restored within their lifetimes.
4) Another implication of the Long War is that it’s entirely possible that whole future generations of Americans (including kids already born between 9/11/2001 and today) may live out their lives and die of old age never having known a time when the United States wasn’t at war against Islamic supremacism in some form or other. For them, for all intents and purposes, the war will be a normal, permanent state – and so will whatever restrictions are placed on their freedoms. Indeed, even when the Long War is finally won (for the sake of keeping some optimism here), there’s no guarantee that those future generations will be in much of a hurry to have those freedoms restored, never having known them in the first place except maybe in an academic sense.
December 20th, 2005 at 5:50 pm
I agree with you. I just think this is one of those topics.
December 20th, 2005 at 10:11 pm
By not even acknowledging that there may be more to the story or the issue, you are promoting a close-mindedness and arrogance that can be just as damaging as the invasiveness that you appear to fear.
That statement exactly reflects why I find the Administration’s actions so offensive.
Is there an argument to be made for rebalancing our civil liberties against our security? Sure there is. But until this story got out, the Bush Administration wasn’t making it. They have instead repeatedly tried to quash debate over the President’s executive limitations. And they’ve never made an honest attempt at changing the law publicly (as Marty Lederman points out today, the Patriot Act is unnecessary given the President’s claim of wartime powers).
Like you, I’m glad this debate is finally happening – it needed, frankly, to get out into the open. But if Bush and Cheney had had their way, we would not be talking about this.
December 20th, 2005 at 10:47 pm
Denise,
I understand the purpose of posting. You are missing the point. I am not the least bit threatened that people have a different opinion. I am simply surprised and amazed at some of the things people say – for example – that they are thankful for our president spying on us! I really wonder what Bush would have to do for you to actually say something like, “hmmmmm, I think this may be going a bit too far.”
Furthermore, by expressing great displeasure with your opinion, I am exercising my right to freedom of speech. But, I guess that when I express displeasure I am “promoting an atmosphere of censorship”? I would suggest that by making that statement, you are definitely trying to make the not-so-subtle suggestion that I keep my great displeasure to myself.
Dos Peros,
So, my cats will be annoyed that I looked at them, and then piss on the carpet? Is that similar to “when I look at you I throw up, and then you’re mother comes around the corner and licks it up”?
December 21st, 2005 at 12:53 am
Meredith — it is a simple observation that cats suck. Nothing personal about you, just your cats and just to the extent that your cats, like all cats, are part of a despictable species that should be exterminated from the face of earth. I don’t know why you had to bring my mother into it.
Joshua — great and depressing post. Thanks, next time I’ll just take a handful of downers and skip Donklephant.
December 21st, 2005 at 2:02 am
Just found this site, and glad I did!
Frankly, I’m amazed at how much attention this whole thing is getting.
The fact is that there are many good arguments for the claim that what the Bush administration did was completely legal.
1) No interception where both parties were in the US was done without a warrant.
2) All interceptions without a warrant were targeting communications where one participant operating outside of the US had suspected connections to Al Qaeda or other terrorist organizations.
3) The FISA (Federal Intelligence Surveillance Court of Review) upheld the President’s power to search without a warrant in 2002. (http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html)
4) Other courts (United States v. Brown [1973] and United States v. Humphrey [1978]) have also upheld the Presidents authority to perform warrantless wiretaps in foreign intelligence.
5) There is no Supreme Court ruling on the matter, which would be the final say.
6) Beyond all of this, Congress gave the President the right to “use all necessary and appropriate force” against those who were responsible for the Sept. 11 attacks. Spying on foreign nationals with suspected terrorist ties, even in their dealings with a US Citizen, is a reasonable derivative of that power.
As I said, I’m frankly surprised that this has created such an uproar.
Why are we surprised that our conversations with foreign nationals that have suspected ties to terrorists are monitored? Oh, you DIDN’T KNOW that your friend had suspected ties to terrorists? Well, sorry – blame your friend, not W.
Why is no one concerned that this was leaked to the press? This isn’t whistleblowing – its partisan politics at its worst.
December 21st, 2005 at 9:52 am
Milo-
The concern is not that Bush was wiretapping Americans speaking to Terrorists overseas. The concern is that he feels that he has the right to wiretap Americans at all. By refusing to allow oversight, we have to trust that the president is not misusing his self proclaimed constitutional authority. I do not trust this president, and I am not alone in that opinion. Nixon felt that he had similar rights. He was set to be impeached over that opinion. Without the proper oversight of this president we (those of us who do not trust every word that he mutters) can never know that he is not wiretapping innocents or political rivals.
December 21st, 2005 at 10:32 am
Andrew: Interesting post. How do you know all this stuff about who the U.S. has been spying on? Bush didn’t go to a FISA court to discuss these intercepts. There is no record, execept whatever may be given over by he executive branch or leaked to the press with regards to these searches. This seems to me to the basis of all the angst — to wit, no oversight whatsoever!
Thank you for the link to the FISA Appellate decision. That was great. You write: “3) The FISA (Federal Intelligence Surveillance Court of Review) upheld the President’s power to search without a warrant in 2002.”
Well, there was a little more to it than that — true, the Inherent Powers does seem to trump the Fourth Amendment in terms of surveillance for the sole purpose of counterintelligence gathering, according to this court, but it is less clear on the necessity of a warrant when the primary purpose of the search is to investigate domestic criminal activity entangled in intelligence gathering. Anyway, it is DEFINITELY a Pro-Prez opinion to be sure.
The one thing I love about the Donklephant is that I regularly get educated and then have to adjust my position. Good post, Andrew — check out Orin Kurr’s post on thie issue at Volokh Conspiracy, at http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722
December 21st, 2005 at 12:40 pm
In addition to what has already been mentioned: “Beyond all of this, Congress gave the President the right to “use all necessary and appropriate forceâ€Â? against those who were responsible for the Sept. 11 attacks.”
Unfortunately, this was left very vague. Who decides what’s necessary and appropriate? The standard the Bush Admin. has established is far different than the standard many Americans would agree to and very likely far different than many in Congress had in mind when they gave Bush that right.
Personally, I don’t think Bush should be deciding what is appropriate for him to do. Ever hear of the saying “the fox watching the henhouse”? If he needs the ability to do something that is prohibited by the Constitution or a law, he should ask Congress for that ability and explain why it is necessary and appropriate.
Maybe I have a different view on this because I have a friend who is a Pakistani citizen and got caught in a bad situation when trying to return home after going to the United Arab Emirates in early 2002. Sure, this could sound suspicious but the only thing he was guilty of was wanting to be present at his sister’s wedding. The only things suspicious were his citizenship and where he was traveling. Because he makes regular international calls to his family, what happens if the Bush Admin. decides that one of his family members is a terrorist (we all know they have been wrong before)? Is he going to be monitored with no judicial review? If so, are my conversations with him going to be monitored? Without independent review, how do I know this is not already happening?
From everything we have seen, it seems like the Bush Admin. is continually testing the boundaries, trying to find how much it can get away with. If they get away with this, what will they try next? How far do they go before we say enough is enough and stand up to protect our rights?
December 22nd, 2005 at 5:26 pm
“The one thing I love about the Donklephant is that I regularly get educated and then have to adjust my position. Good post, Andrew â€â€? check out Orin Kurr’s post on thie issue at Volokh Conspiracy,”
DosPeros – thanks for your kind words, very nice. And thanks for the link. Very informative – I need to spend more time with it, and the comments. I don’t agree with everything he’s said, but I need to research and think a bit more first. I agree with you about Donklephant – I’m glad to have found it! On your first point of “how do I know..” Frankly, I don’t – I’m repeating what the administration has stated many times. I guess they could be lying, but that is entirely a separate matter.
Ryan – you said “Personally, I don’t think Bush should be deciding what is appropriate for him to do. Ever hear of the saying “the fox watching the henhouseâ€Â?? If he needs the ability to do something that is prohibited by the Constitution or a law, he should ask Congress for that ability and explain why it is necessary and appropriate.”
Sorry, but you need to re-read the constitution. The President has Executive privs that in many cases allow him to do exactly that – decide what is OK for him to do. And, as for this being unconstitutional, read the link above, I think it clearly shows that what was done WAS constitutional. I mean no disrespect, but I don’t believe that is really the issue…
Also, on your Pakistani friend, that is regrettable, but I don’t think we should be considering the inconvenience to foreign citizens when it comes to our safety. Unfortunately, the fact is that an overwhelming majority of terrorist attacks have been conducted by people that would have exhibited his same behavior. Bummer for him, but it should be of no concern to our national policy. And, if the administration does believe that someone he knows has ties to terror, yes, I think they should monitor his conversations WITH THOSE PEOPLE. Does he have a green card? If not, he has no protection under any of the laws we are all debating here anyway. It may be tough for good, honest, upright folks from the mid-east (and there are a ton of them), but oh well. Look at Pakistani law regarding these issues with their foreign nationals… Should we emulate that – not necessarily, but we do need to ensure the safety of the public at large. You know, given that your friend is an upstanding person, the security at the airport is to protect him as well…
John – I’m sorry that you don’t trust your President, I suppose I can understand that having lived through the Clinton administration. I can also understand that you think there SHOULD be some kind of oversight of this type of activity. But at this point, at the very least, I think most people will admit, however begrudgingly, that this is legally a grey area. Given this point, and since you brought up a point of trust, I think it helps to look at motives. I don’t think that anyone has pointed to anything credible saying that the motives of these actions were anything other than trying to ensure the security of both you and me.
December 22nd, 2005 at 5:42 pm
Ahh…music to my ears…
Truly cool.
February 1st, 2006 at 1:11 am
come on -is the left at war with bush-because the rest of us are fighting a real war-you know -the one where our troops fight and die for their country.So now its wire taps-whats next . Im not saying he should have a free hand-so lets document the wire taps after the fact.Yes we should have a watch dog group after the fact.Lets face it we do not have real borders-so how can we stay safe unless we have wire taps.If you want to get mad about something-start with the borders or the lack of.If you want to inpeach bush-at lest do it for a the right thing.He gave an oath to defend and protect our countrys borders-I guess that would includ wire taps.But not the lack of border controll.