The Wall Street Journal spreads lies as our Congress continues to cede away our right to privacy and encourge lawless behavior (at least among people with enough money to buy their influence).
And an interesting piece about the military's appeal to us which relates to a small piece of Denny's and my discussion in comments to another post.
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Re: the second linked article. Talk about damning with faint praise! "The military is great! Look how incredibly diverse it is! It helps young men become real men. And did I mention how diverse it is? (except for the women)" What about, oh, I don’t know...defending the country?
And then, the Call ― to "engage" with the military ethos in order "redirect our nation along less militaristic lines" so we can create "opportunities for our young men to assert their masculinity in non-military and nonviolent settings"― lest that failure to engage result in an outcome "self-destructive" for "progressive agendas." Sorry. The advancement of the progressive agenda is not the purpose of the US military.
Astore writes, "The challenge for progressives is to recognize [reasons why men seek to construct and assert their maleness within the military], and then to work to create viable alternatives to military service in which masculinity and patriotism can be demonstrated in non-lethal settings." Indeed. Let's engage with the military just enough to show that we appreciate its diversity and the educational opportunities that it offers, and then completely deconstruct its value system. After all, we don't really need it anymore, since the Recent Unpleasantness is all over and the world is a happy-happy place where there are no real threats to our national sovereignty. /sarc.
Don't get me wrong. I think diversity is interesting, and in many senses, good. I think the forest service does great work. I don't think everyone needs to have served in the military. I think nonviolent settings are a fine place to assert one's masculinity. I'm generally in favor of doing everything in settings regarded as "non-lethal." But what about "engaging" the military with a substantial discussion about words like "duty" and "honor"? What about a conversation about the role of the military in today’s "fourth generation" wars? The author invokes Band of Brothers, and then postulates that many of the men who admire that story join the military for reasons of...(wait for it)..."taboo breaking or self-affirmation." Non sequitur.
I think it's a vast oversimplification to say that people trust the military because it's so gosh-darn democratic. Instead, what about entertaining the possibility that people trust the military because it's actually trustworthy (something that those seeking to advance the "progressive agenda" might need a primer on these days...)?
Feel free to call me on this ― or back me up, for that matter; stranger things have happened ― but this article, for all of the superficial relevance of some of its assertions to one of the arcs of comments earlier on this blog, seemed to me in final analysis shallow and a bit condescending.
Chris,
I'll neither call you on it or back you up. Just know that I didn't post it to let it make a point for me. Denny had contended that the military was made up of economically diverse populations of people while I had contended that it was a place -- academy graduates excepted -- where members of the lower econmic classes tended to find jobs. I thought it was interesting that a "progressive" was backing Denny's claim, so I shared it.
Sadly, the more important link was the one about FISA. I hope the lack of outrage expressed here is due to agreement with the article. I was proud of Chris Dodd for his address on the Senate floor tonight, but aghast that even C-SPAN ended its coverage with the comment that FISA had expired this weekend. That the channel that broadcasts our government at work could make the same mistake (or spread the lie, depending on how jaded you may be feeling) is beyond mind-boggling.
I didn't think you were using the second article to make a point, but it irritated me enough that I had to comment on it -- though not directly at you.
That a "progressive" would agree with Denny on the fact of the diversity in the military is not surprising at all. That they would come to such vastly different conclusions about what that meant is likewise non-eyebrow-raising.
People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.
--George Orwell
I find an interesting, though tenuous, thread between the links on FISA and the diversity of the military. In both cases, the writers seem to desire to limit--redirect--the ability of people to protect them while providing no suggestion of how to continue to protect them without those powers.
The problem with this kind of thinking--I'll kindly call it progressive here--is that it is unrealistic and naive of the facts of American history. As an example, the US government has been intercepting telecommunications almost as long as the technology has existed, yet we have somehow managed to survive as a more-or-less free society.
What lurks beneath the surface of the reactionary logic that the government should not have such powers is the belief on the part of such reactionaries that the government rules us. Such reactionaries see such power as a threat to liberty that only exists at the government's pleasure.
Reality is a far different animal, as it turns out. As most members of the all-volunteer military will tell you, the power of the nation is derived from th strength of the people. Within that strenght lies the ability of the people to grant the government power to use "extrordinary powers" to protect, while limiting those powers' scope and application.
Warrantless wiretapping is one of those kinds of powers. This power is not an all or nothing proposition. There is a place for such a tool in the government toolbox, and as citizens, it is our responsibility to monitor that tool's proper application and use. Hence the reason we have a free electorate, a Congress with the power of oversight, courts to establish bounds and determine wrongdoing, and a free press whose job it is to identify when things have gone too far.
Frankly, these two articles make me want to shout at the top of my lungs "America grow up!" It's time we accept our place in the world and what he have to do to retain it and spread what made our nation great to those who have not reached our level yet. Is that militaristic? Perhaps. Is it just? Certainly.
PS: David, I agree with your surprise at finding a political progressive who understands the diversity of the military, although it is telling that he was military.
Denny,
I am flabbergasted at your comments about government powers. Though I know there is no chance that my comments will change your mind, I can't let your comments stand uncontested.
"the US government has been intercepting telecommunications almost as long as the technology has existed, yet we have somehow managed to survive as a more-or-less free society."
No "more" about it. So long as our government is allowed to intercept our communications, as you so kindly put it, though "spy" is the more accurate term, we are less free.
I'm stunned that someone who is so "get the government out of my life" on just about every other issue is so willing to allow that same government to monitor your communications. I'm sure you wouldn't want me listening in to your conversations or tracking every e-mail you write; why do you think it's ok for your government to do it?
"What lurks beneath the surface of the reactionary logic that the government should not have such powers is the belief on the part of such reactionaries that the government rules us."
That (the government ruling us) is precisely the threat at which protections of freedom are aimed. If I continue to act as if you can do anything you want to do, you will soon start doing it. Don't pretend you don't believe that. You surely believe it when it comes to foreign policy. Your entire concept that only the U.S. has the moral standing and imperative to do what's right for the rest of the world is based on the idea that if we don't watch everyone constantly, they will become (greater) threats to us. For all your talk about "reality," you are grossly naive if you think people are so different that only "others" will attempt to impose their wills on us.
Furthermore and perhaps most importantly, the changes being made to FISA don't just give the government these powers -- they already had them. They give the powers to one man, the President. Henceforth, if the President decides -- and he is no longer compelled to defend that decision to anyone anywhere -- that you are a threat to the nation, then you are and the government can set out to gather evidence against you. When you combine that with the other lawlessness we've allowed to occur -- secret rendition sites, the suspension of habeas corpus -- you've set up conditions where one man can have you arrested, imprisioned, tortured, and killed all on his word alone. If you think it can't happen, ask yourself why our government was formed as it was in the first place. Do you believe that we Americans have somehow evolved beyond temptation to do wrong? And even if you think that our Presidents will all be "good" you've still essentially signed off on the transition of our form of government from republican democracy to enlightened despotism. Way to go.
You may not care because you envision yourself with the gun. You will be the one called upon to enforce these trangressions when they occur. You may think yourself safe should these things come to pass -- and they may not in your lifetime -- but be very sure that you agree with everything your President believes or you may find yourself in a moment of conscience that you won't have the safety to suffer in private.
"Within that strenght (sic) lies the ability of the people to grant the government power to use 'extrordinary powers' to protect, while limiting those powers' scope and application."
Which is precisely what FISA did. It grants the government the ability, when it has cause, to use wiretapping as a surveillance measure. The law allows for the government to do so by presenting its evidence to the FISA court -- in secret so that we don't leak information to the enemy. The court has almost never disallowed a government request. Furthermore, the law allows the government to conduct surveillance for 72 hours prior to receiving authorization in cases where it determines that it needs to act immediately.
These protections were put in place specifically to limit the scope and application just as you say it is our right to do. The problem is that the President and the telecomms broke the law, and now the Congress, which is supposed to provide a check, is saying "ah, big deal; we'll simply eliminate that portion of the law and provide amnesty to the telecomms."
"as citizens, it is our responsibility to monitor that tool's proper application and use. Hence the reason we have a free electorate, a Congress with the power of oversight, courts to establish bounds and determine wrongdoing"
Uh huh. And the argument put forth by the President's defenders is "we can't allow the courts to interfere with this." And the Congress is not providing oversight. Instead, it is re-writing the law to retroactively make legal what was previously illegal. I wish I could get away with that.
The net result is that citizens who may have been wrongfully aggrieved by this practice can't get redress for it. They can't bring suit. In short, there's no way to monitor the proper application and use (which, in these cases, were improper and unlawful).
"It's time we accept our place in the world and what he have to do to retain it and spread what made our nation great to those who have not reached our level yet. Is that militaristic? Perhaps. Is it just? Certainly."
Yikes! How can we spread what made us great when we can't even apply it at home? Or do you mean our military might is what makes us great? What exactly is it, Denny, that you think we have to do to retain our place in the world? What place is that exactly?
You present your view with an almost religious zeal. Is this merely patriotic fervor, or do you believe that we have some sort of mandate to rule the world?
I've heard people talk this talk before. They are the same people who don't want anyone else to make our decisions for us which is basically code for not having to do anything we don't want to do. The U.N., for example, is fine so long as they do what we want them to do, but the minute other nations disagree, we want to "cowboy up" and do our own thing.
You seem to think that it takes our military to spread "what makes us great", whatever you think that is. What if other people don't want what we have? Should we force it down their throats? It seems clear that your view is militaristic to a disturbing degree. Just, it is not, however.
You're a big fan of history and of the founders. Go re-read what they said about threats to our nation.
Look, I'm a home team guy. If it really is us against the world, then I'm an "us." I don't think that's the case, though. But people who believe as you do are sure working very hard to ensure that we get to that point. You seem to have stopped looking at any other options than militarily ensuring that the world looks as we would have it look.
I don't know what motivates that kind of thinking, but I suspect it is fear masquerading as strength and conviction. I can't even imagine the hubris it takes to believe in your own righteousness to that degree, and I'm a pretty confident, even arrogant s.o.b.
You need to hear, even if you don't agree or don't care, that your way of thinking is radical and the root of that radicalism is fundamental. In short, you have become what you hate. You are very much like our enemies, only you work for a country that has the military might to eschew terror as a tactic. But at the core, you are the same. You substitute democracy (and perhaps some, as yet, undeclared religious belief) for theocracy, but you believe the same root thing that you claim our enemies do: that the world should look like us and that we have a right to force that to happen if we choose. Otherwise, I don't know why you'd feel impelled to shout at your fellow countrymen the way you'd like to.
You may want to scream your rage against those that resist unleashing you to wreak destruction upon the earth in the name of democracy, but if that is what "grow[ing] up" means to you, I pray we remain children for a very long time.
David, I find it very interesting that you react so vigorously to this one perceived incursion into our so-called privacy. What about all of the other, very real incursions which so many progressives not only ignore but often condone such as forced government education or the threat to take our money away to pay for programs whether we want them or not?
I also find it interesting that you react so vehemently to something yet provide no ideas for how it should be done differently. Certainly, in a perfect world, a FISA court listening to requests and approving them might just work, but in the real world, our enemies move a hell of a lot faster than we do because they have the benefit of a nimbleness we do no allow ourselves to have.
How will you justify the deaths of an Americans, even one, if that death was attributed to the fact that intelligence was delayed because the government did not have the power to protect us because that power was artificially constrained by people trying to protect a "right" that is not in danger of being taken away?
I do not, as you insinuate, grant the government limitless power to act at its will. Instead, I grant that the government needs more or less power as the circumstances dictate. I do not believe for a second that power, once gained, cannot be taken back. If that were so, how did we become free to begin with?
Your reaction also assumes that every person working for the government in intelligence or in the military specifically wants to send you to jail for some offence, real or perceived. Do you really believe that the people in the government are that evil? If so, what makes you think that one government versus another is any different?
Further, I point to your own reactions to my post as evidence that you fear your government. If you, as a citizen of a nation governed of, by, and for the people fear your government that much, then you are not doing your job as a citizen. If the government threatens you that much, then you, as a free citizen of a free land, are obligated to do something more about it than talk.
As to your questions about me personally, that is exactly why I have the gun. I take my responsibilities as a citizen and as a member of the US Military very seriously. My oath to defend is not some blind allegiance to some power that I obey without thought. I understand the difference between a lawful order and an unlawful one, and I stand on my own intellect and morality to judge what should be done in each circumstance. Do not doubt that you, as an individual, are free because people like me stand between you and everyone who would do you harm, internationally or domestically.
If you are afraid, take that power away from the government. Limit what the government can do to protect you, but do not say a word if that limit comes back to haunt you.
Finally, for the record, it is absolutely ridiculous for anyone to think that any government is actually capable of monitoring all of our communications, even if it actually wanted to. This is not a power to do citizens harm, but to do what citizens have asked the government to do for them.
Somewhere in part of this discussion, the difference between "liberty" and "privacy" has become somewhat obscured...
Chris, how so?
Please do not interpret my silence on the telecom amnesty/FISA issue as a tacit agreement with the "breathless" (to use this blog's favorite adjective) statements made in the original linked article.
In light of the recent comments posted to this thread, I think my relative silence should be interpreted as the discussion fourm equivalent of "duck and cover!"
:)
"David, I find it very interesting that you react so vigorously to this one perceived incursion into our so-called privacy. What about all of the other, very real incursions which so many progressives not only ignore but often condone such as forced government education or the threat to take our money away to pay for programs whether we want them or not?"
You're right; this is but one issue, and it is the issue that the article addressed and so one I was thinking about. We can broaden the discussion to education and taxes or other incursions if you like, but don't take my inability to discuss all facets of government in one post or comment as a sign that I somehow have inconsistent views. Some of my views may well be inconsistent, but not talking about them all at once isn't the tell you're looking for.
"I also find it interesting that you react so vehemently to something yet provide no ideas for how it should be done differently."
Really? That's interesting? I thought I pretty clearly implied, if not stated explicitly, that I believe that the FISA law as it was previously constituted suited our needs.
"Certainly, in a perfect world, a FISA court listening to requests and approving them might just work, but in the real world, our enemies move a hell of a lot faster than we do because they have the benefit of a nimbleness we do no allow ourselves to have."
This is a wonderful example of how closed your mind is. You insist on your world view even in the face of other information. FISA already allowed for immediate action. As I mentioned, it provided for a 72 hour window in which intelligence agencies could act before and while seeking a warrant. As you point out in your most recent post, there are other factors that made our response to threats less than perfect. The FISA law wasn't one of them.
I am ceratinly concerned about unnecessary government oversight, but the real issue -- and perhaps I didn't do enough in my shock to make this clear -- is that the President and the telecomms broke the law and now Congress is trying to retroactively get them off the hook. If that kind of lawlessness doesn't cause you concern, I don't know how to help you.
"How will you justify the deaths of an Americans, even one, if that death was attributed to the fact that intelligence was delayed because the government did not have the power to protect us because that power was artificially constrained by people trying to protect a "right" that is not in danger of being taken away?"
Government power being "artificially constrained"? What the hell does that even mean? From other comments you've made, you clearly don't believe this phrasing. I'll give you the chance to correct it without further argument at this time. That said,
Who is being unrealistic now, Denny? The real world, as you like to point out, is a dangerous place. It always has been and it always will be. The government cannot guarantee our safety. And if we act as if it can, provided we only cede to it enough of our liberties, then we have created an even greater danger to ourselves. You are willing to die on the battle field to protect our liberties, why are you so afraid to die somewhere else for them?
"I do not, as you insinuate, grant the government limitless power to act at its will. Instead, I grant that the government needs more or less power as the circumstances dictate. I do not believe for a second that power, once gained, cannot be taken back. If that were so, how did we become free to begin with?"
Through armed revolution, which, I'd think most sane people would like to avoid having to do again.
"Your reaction also assumes that every person working for the government in intelligence or in the military specifically wants to send you to jail for some offence, real or perceived. Do you really believe that the people in the government are that evil?"
My reaction does not, in fact, assume that. I don't believe that the people in government are that evil. I do believe, however, in the cliche that power corrupts and absolute power corrupts absolutely. Your argument borders on the idea that we should remove all laws because that is what creates criminals. If we say that it is ok for the President to break the law, then he can do whatever he pleases when it pleases him and we've basically agreed to it. We will have sanctioned his actions. If we hold the line and say, "no, you are subject to the law" then the President may still choose to break it, as this one did, but we have redress (assuming we don't piss it away like we're doing now).
"Further, I point to your own reactions to my post as evidence that you fear your government. If you, as a citizen of a nation governed of, by, and for the people fear your government that much, then you are not doing your job as a citizen. If the government threatens you that much, then you, as a free citizen of a free land, are obligated to do something more about it than talk."
Denny, you criticize me for being vigilant and not vigilant enough. Which is it? Exactly what is it that you think I should do? What is the more? Let me also point out that in a republican democracy such as ours, I could do my job as a citizen, as you put it, and still not be able to stem the tide single-handedly if the rest of my fellow citizens are not also being vigilant. As is clear from this discussion, some may be vigilant but may be looking in the other direction and not willing to believe what the other lookouts are telling them.
"I understand the difference between a lawful order and an unlawful one"
Then why doesn't this issue bother you? The President and the telecomms broke the law. Retroactively protecting them from the consequences of that action is not "lawful order."
"I stand on my own intellect and morality to judge what should be done in each circumstance."
How does that square with your duty to obey your superiors?
"Do not doubt that you, as an individual, are free because people like me stand between you and everyone who would do you harm, internationally or domestically."
There it is. I realize that you need to think this way to do what you do. You should be proud of your service and your training. It's true that our military is a key and necessary component to our national defense. However, don't assume that you possess some special quality that makes you more fit for that duty than those who haven't chosen that path.
You criticize me, and by implication, others for seeking a less militant path. You seem to believe the only way to demonstrate courage is to arm yourself and take the field against our enemies. You constantly talk of "safety" and "protection" and you seem willing to give our government any tool it claims it needs to provide these things. Your acid test is that if even a single person is subject to harm from some action we weren't willing to take then we have somehow failed to provide our government with enough tools. Denny, there aren't enough tools in the world to protect us surely from people who are willing to wait, who are willing to sacrifice their own lives to take our own.
The truth of a republican democracy like our own is that there are no non-combatants. In a government that is not representative, the people might be held blameless for the actions of their government. But, as you point out, our form of government implies and requires an active citizenry whether or not we actually are. Therefore, every act taken by our government on our behalf is a reflection of our will. Any grievance against us, real or perceived, falls on all our shoulders. How do I justify the deaths of Americans in this or any conflict? They justify themselves. Will I take responsibility for my stance if others die because of it? I do, as do we all.
We very much, as Ben Franklin said, "hang together or we will surely hang separately." Whether the country adopts your point of view or mine, we all bear the consequences.
You may believe you stand between me and certain doom at the hands of people who want to kill me. But it seems clear to me that there are a lot more people that want to kill me because of the actions of people like you, as you put it.
There are certainly bad people throughout the world who need no provocation to wreak havoc. Many more, however, are only stirred to action by perceived threats. If anyone should understand this, you should. You who are so afraid of what might befall us if our military doesn't have primacy in our plans, you who so actively and ardently arm to seek out perceived threats and who are willing to pre-emptively attack to protect our interests, you should surely be able to understand that provocative action breeds provocative action. When we give nations reason to doubt our intentions, we leave them little choice but to prepare to combat us.
I don't know the answer to our current international problems. Only a fool could feel certain about any of the courses we might take. But I am more willing to die for what I perceive to be our principles than I am to die to force them onto others which is the role you seem to be advocating in a broad sense when you want to shout about us growing up and claiming our rightful place in the world.
If your viewpoint prevails, then I pray God you are right because if you are wrong, no number of people like you can protect me from the consequences.
"If you are afraid, take that power away from the government. Limit what the government can do to protect you, but do not say a word if that limit comes back to haunt you."
Again, what exactly is it you propose I do to take the power away? I'm sorry you think that I would blame someone else if a course of action I suggested went awry. I would in fact say at least three words: "I was wrong."
"Finally, for the record, it is absolutely ridiculous for anyone to think that any government is actually capable of monitoring all of our communications, even if it actually wanted to. This is not a power to do citizens harm, but to do what citizens have asked the government to do for them."
Which misses the point entirely. They don't need to monitor all of our communications for it to be a dangerous precedent. But if you believe what you say, then you must also concede that we can't monitor all enemy communications either. If we can monitor enough of them to be "effective" in "protecting" us, then surely enough of our own communications could be monitored to be dangerous to our own liberty.
But again, even I am missing the point in this response. The fact is the government has, under FISA as enacted in 1977, the ability you want it to have. The only "gain" from the additions to it are that a) the President and the telecomms got to break the law with no penalty and b) from now on, the President can do as he pleases without oversight -- the very court oversight the people put in place in the first place as a response to Presidential overreaching. How does this point escape you? Are you so blind with fear that you aren't willing to hold your own executive to the law? It certainly seems that way.
There is a sometimes narrow difference between close mindedness and certainty, between realism and fear.
David, I do not think you are right. That is how I take the position that I do. I do not agree to your points nor acknowledge your interpretations as more factual than my own. In fact, this entire conversation would not occur if I did.
Further, I am not afraid. In fact, I am confident in my understanding of defense, intelligence, and the Constitution and my relationship to them. What you are calling fear is a refusal to concede points I disagree with because I obviously see the issue from an entirely different light than you do.
Which brings me to what I believe is the fundamental disconnect here: I do not believe that the Constitution grants each of us some fundamental privacy, that is some fundamental right to hide our activities from each other in order to obfuscate our behavior or intent.
Certainly, we have freedom. Certainly, we have liberty. We also certainly have limitations in order for us to be able to live in a society. We are also at war--again this is a point I think we may disagree on--and war requires a different kind of behavior than now pervades our society. It is into this category of different behavior elicited by war that I place the issue of warrantless wiretapping.
In normal times and under normal circumstances, I would grant many of your arguments with regard to warrantless wiretapping. In normal circumstances, the limitations created by the FISA law would be appropriate and sufficient. These are not normal circumstances--again, I think here is a place we disagree.
My understanding of these things actually goes back to my more general understanding of the function of the federal government and of the presidency. I see the president's primary function as international relations and national defense. My willingness to grant the executive greater power to execute those functions during a time of war is entirely consistent with that understanding.
Of course, your major criticism of my point of view seems to be that it is narrow because I have a particular experience that you say biases me toward militarism. To the contrary, it would be very easy to have a view very similar to your own, and I believe it is my particular experience that has informed by view and transformed it into what it is today.
You are free to characterize my view as being foolish, fearful, close minded, and uninformed because that is your right, but perhaps you should consider that other people do think differently than you do, and that, just perhaps, their view might have been achieved by intellect and logic just as deep as your own. Be sure that I take everything that I hear from others under consideration. Sometimes what I hear informs my understanding more fully, sometimes it has no effect because it contradicts some fundamental I already know to be true.
I will tell you without any doubt that I am none of those things. Far to the contrary, I am confident, fearless, and informed enough to believe in our nation, its people, its institutions, its ideals, and its morals enough to live as a free citizen. I believe that, if more people took my view, we would all be freer and less afraid.
"You are free to characterize my view as being foolish, fearful, close minded, and uninformed because that is your right"
Denny, you and I are both far too adept at the ad hominem rhetoric currently in vogue. It has lead us both to use personal characterizations and implications of personal characterizations far too loosely. That's the emotional pull in a conversation such as this. It detracts from both of our arguments, for which reason I'm sorry I've fallen into it so readily and consistently. (If I thought I'd actually hurt your feelings, I'd be sorry for that too, but your confidence seems to armor you too well for mere words on my part to pierce it.)
"but perhaps you should consider that other people do think differently than you do, and that, just perhaps, their view might have been achieved by intellect and logic just as deep as your own."
I've not said otherwise, and I firmly believe this to be true. I keep this in mind all the time. It is merely the misuse of the rhetoric I just referred to that makes it seem as if I don't. Again, that's part of what weakens an argument. I don't believe you to be a fool, though I recognize that it is possible for an intelligent person to be fooled. That might apply to either one of us at this point, I can't say for sure, though I've no doubt you feel you can.
Where we differ is that you are unwaveringly certain and I am not. I distrust your certainty, however, because, despite your certainty, you are unconvincing. You have not conceded my points, but neither have you successfully rebutted them; you've merely rejected them which is insufficient to sway me. Perhaps that is not your intent, which is a shame because a) I'm open to being convinced and b) it seems a waste of our time and efforts if we are just bandying without intent.
I've asked you a goodly number of direct questions which you have not answered. Perhaps you thought they were rhetorical. Some of those questions had more to do with the personal nature of our discussion, so I withdraw them as irrelevant. I do, however, have several issue-related questions that I'd like you to answer. You're free not to, of course, but the answers would help clarify your position for me.
What is it in the fourth amendment to the Constitution (or perhaps elsewhere) that leads you to believe that it doesn't convey upon us a right to privacy?
What is the endgame to the current war? In other words, in a war so different in nature from wars between nations, under what conditions will it end? I ask this because your willingness to allow the governement to act in certain ways -- which is both something we've done in the past and reasonable given a foreseeable end to the war -- seems posited on just that assumption: that there will be an end to the war and thus the conditions under which those powers might be valid. Since I don't see the situation as clearly and confidently as you do (and I'm not trying to coyly get you to play "seer" here, but genuinely want to know what conditions would define an end of the war for you) I wonder how you see it playing out. To be clear, I'm asking two questions here: 1) How will we know when the war is over (what will that "look" like)? and 2) How do you see it playing out (what's your prediction)? Throw in a third: how long do you think it will last?
Finally, do you believe the President and the telecomms broke the existing laws of our country? If not, why do you believe this to be true? If so, why do you think they should receive immunity in seeming contradiction to the Constitutional provision against ex post facto law as found in Article 1, Section 9 of the Constitution?
David, it's interesting that we both came to similar conclusions about the nature of the drift of this particular debate at about the same time. I had just sat down to write a similar statement about how I responded to your earlier comments by lumping you into a general category of thinking I categorize as being similar to your own, thereby avoiding answers to your actual points when I saw your comment. I apologize for anything I said of a personal nature because such statements are unnecessary and obscure the points being discussed.
I will attempt to answer those points now:
What is it in the fourth amendment to the Constitution (or perhaps elsewhere) that leads you to believe that it doesn't convey upon us a right to privacy?
I am not being semantical when I make the following points. I do not see wiretapping in the same light as, say, seizing an actual phone or computer for two reasons.
First, is the concept of unreasonable. In order for some agent of law enforcement to be able to act, there must first be evidence. There can be no evidence if the gathering of that evidence is strictly controlled or prohibited. I believe that the statement prohibiting "unreasonable searches and seizures" allows for there to be a limited scope of reasonable ones, as defined by statute and the Constitutional understanding of the courts.
This understanding of reasonable searches and seizures must be very, specifically, narrowly defined. I think that terrorist surveillance is one of those kinds of narrow definitions. Such surveillance is intelligence gathering that, by its nature requires us to predict something before it happens rather than responding to it after it does. Without this tool, we are too often left to wait until the terrorists strike and then to try and bring as many of them to justice as we can. A tool like warrantless wiretapping allows us to look for the terrorists rather than waiting for them to strike.
Second, is the concept of search and seizure itself. Wiretapping, whether warrentless or no, stretches my definition of a search. I understand that some interpretations claim that interpersonal communications over otherwise public media is protected in the same way as are one's personal effects or writings. I believe this line of thinking is a stretch.
If a law enforcement agent is sitting in a bar and overhears two people plotting a crime, is that law enforcement agent allowed to act, or does he have to get a warrant first? What if that law enforcement agent was there because he suspected that those two people would be there talking about that crime? Does his presence constitute an unreasonable search? We grant informants the privilege of gathering information that way. Why not law enforcement, when needed, and when narrowly defined?
Again, I think that the operative concept here is warrantless wiretapping narrowly defined and employed. We have to rely on the oversight of various agencies of government, the courts, (yes, even) the media, and of individuals to ensure that narrow scope is adhered to and to make corrections as needed.
What is the endgame to the current war?
This is a very difficult question to answer because of the nature of the enemy and the nature of the war. The endgame consists, ideally, of successfully denying the enemy the ability to recruit, train, and employ fighters for his cause. These objectives are accomplished, generally, by eliminating the pool of recruits, by denying the enemy safe haven to organize and train, and by denying the enemy the logistical capability to operate in the field.
The specifics of how these objectives are accomplished are the same topic I shied away from earlier because, as I said before, they get into the very brutal nature of the fight we are engaged in, and such specifics are often offensive to a general audience--not necessarily the contributors to this weblog, but people who just happen to blunder here--that does not want to deal with them practically. In an effort to avoid getting this blog kicked off of Blogger, I will avoid them here. I may open the topic of conversation on my own weblog, and I will let you all know if I do. Otherwise, my email address is dlhitzeman at hitzeman dot com, and I am willing to discuss this topic at great length in person or via email.
However, I can state that I do not believe that this fight is only a military one. Certain aspects of this fight are purely military, but large parts are diplomatic, economic, and idealistic. Victory in this fight involves a national--really a worldwide--push on every front. In that way, and that way only, will this war end in any sort of reasonable way.
Even then, I question whether it is really a victory or a respite, but either way, when I see the previously mentioned objectives accomplished, then I would call the war "over" and would advocate a return to some semblance of normalcy. How long that process takes depends entirely on how long it takes us to realize there is really a war and united behind accomplishing those objectives.
Finally, do you believe the President and the telecomms broke the existing laws of our country?
Empirically, it is pretty clear that not just this administration, but several generations of administrations, are guilty of breaking a law with regard to the use of telecommunications companies cooperating in the collection of intelligence within the United States. Sometimes laws are just bad, not because they were badly intentioned, but because they were unable apply to circumstances that could not have been anticipated at the time they were crafted.
My understanding of this state of affairs falls in line with the same understanding that leads me to believe that there is a hierarchy of responsibility built into the Constitution. Even if Congress were to impeach and convict the current president for breaking this law, I believe he did so for higher purpose than the law represents. I do not claim here that anyone is above the law, rather I assert that sometimes the law cannot anticipate the circumstances where doing the right thing results in it being broken.
Again, I appeal to the nature of the situation at hand as the primary defense. We are at war, and we are at war with a non-state enemy. The rules we envisioned for fighting the Soviets or even the Chinese are not always adequate for this kind of fight. As is evidenced by debates ranging from gathering intelligence to the capture of the enemy to interrogation methods, we are slowly feeling our way through the process of defining the new rules for a new fight. We have to be careful in all of this that we don't become our own worst enemy, thereby handing our real enemy victory
-=DLH=-
Denny,
I appreciate your apology, but it is unnecessary. As we used to say on the playground, "No blood, no foul."
I want to address the reasoning you present in the answers to my questions, but I first want to preface my comments by clarifying some things that may have gotten muddied in our verbal tussel.
I do think we are at war, and perhaps more importantly, should be at war against terrorists, specifically those radical Islamist extremists who seek our and any non-Islamist's demise. I also am coming to believe that this threat is wider than I had previously imagined. I recognize that this is a conflict in which we are engaged both abroad and at home.
So we have common ground. We also seem to believe in our own American fundamentals, though we do seem to interpret them differently, which is why I am continuing the conversation because a) it's interesting, b) grappling with these issues helps me (and hopefully others) understand them better, and c) the issues are very important.
To your points then:
"First, is the concept of unreasonable. In order for some agent of law enforcement to be able to act, there must first be evidence. There can be no evidence if the gathering of that evidence is strictly controlled or prohibited."
I think there is a circularity to your reasoning here. I'm not sure to what act of law enforcement you are alluding, but in the context of the discussion I think it is reasonable to assume you mean act to gather evidence. The actual chain of activity suggested by the 4th Amendment is that in order for law enforcement to act to gather evidence it need not have evidence, but probable cause.
Evidence can be found in many ways and has been even under the controls provided for by the amendment and the law.
"I believe that the statement prohibiting "unreasonable searches and seizures" allows for there to be a limited scope of reasonable ones, as defined by statute and the Constitutional understanding of the courts."
You're right that there are reasonable searches and seizures. The amendment provides a way for us to ensure they are reasonable by requiring a warrant. I agree that wiretapping can be a reasonable search and seizure (electronic transmission and storage actually allows it to be both simultaneously in many cases) but only if it is attended with a warrant.
"Such surveillance is intelligence gathering that, by its nature requires us to predict something before it happens rather than responding to it after it does."
This sounds a bit like Minority Report. I get your point, but there has to be some probable cause for investigating. If we allow surveillance without this protection, then we truly have lost privacy because it essentially means we could find ourselves with cameras in our houses. I know that sounds extreme. It is. But if we don't hold to the idea that a warrant is required, how do we make a reasonable argument against such intrusions?
"Without this tool, we are too often left to wait until the terrorists strike and then to try and bring as many of them to justice as we can. A tool like warrantless wiretapping allows us to look for the terrorists rather than waiting for them to strike."
Your intentions are good here, but you are offering the same slippery logic that so many people offer in defense of this kind of idea. The goal is to listen in on terrorists, yes? No one thinks this is a bad idea. But, the argument you are making posits that either a) we know who the terrorists are or b) that we should be able to listen in to any conversation so that we can identify terrorist intent.
If it is a), then there is no need for the tap to be warrantless. If we have identified the person as a terrorist -- in fact if we even have probable cause to believe the person is such -- we can easily get a warrant to listen in. If it is b), then we are all subject to this intrusion which is why so many people characterize the new warrantless provisions as applying to all Americans because in a fishing expedition of this kind, you'll sweep up all communications. Aside from the arguments against this on principle, it's a very inefficient method, as you pointed out earlier.
Finally, the argument that we are left to wait isn't valid. FISA as amended in, I believe, 2001 allows for the 72-hour exception (you can start the tap and get authorization within 72 hours.)
"Wiretapping, whether warrentless or no, stretches my definition of a search."
I understand your opinion here, but the applicable legal principle that applies is whether or not the person whose communication is in question has a reasonable expectation of privacy. (See the passage just before note 36). The issue remains open to debate, but the predominance of legal opinion is that wiretapping is subject to 4th Amendment protections. Your bar scenarios don't fall under the 4th because there isn't a reasonable expectation of privacy for a conversation in a public place.
My own personal opinion is that a phone call is a reasonably private thing. However, e-mails wouldn't be even though I think a lot of people might think they are. When you consider that the messages propagate to and are stored on various servers, it's hard to realistically say they are private even if you wish they were.
"I think that the operative concept here is warrantless wiretapping narrowly defined and employed. We have to rely on the oversight of various agencies of government, the courts, (yes, even) the media, and of individuals to ensure that narrow scope is adhered to and to make corrections as needed."
I would argue that the warrant itself is part of the narrow definition and the oversight. Without the warrant necessity, there is no real limitation. The warrant IS the lynchpin of the whole issue, it seems to me.
As to the war, I won't comment except to say that given our public definition of the enemy, I don't know that we can ever be sure when we've "won." I make this comment only in the context of the kinds of tools we should implement in our prosecution of the war. Without a clear end (and there hasn't been a specific definition articulated by our government), any "emergency" measures we authorize could exist in perpetuity.
As to the law and law breaking, I understand that it doesn't concern you in this instance whether the President or his surrogates and/or the telecomms broke the law because you think they did it for a good reason. That's fine. So let's have the hearing. Let's allow people who might be concerned -- or worse, aggrieved -- to bring suit and let the judiciary (or Senate in case of the President) decide. That's how the checks and balances are designed to work.
While I don't agree with everything he said, Glenn Greenwald makes the point better than I could. Whether it's ultimately good or bad, right or wrong, the arguments being put forth in the public arena are seriously flawed.
I congratulate David and Denny on the last three posts to this topic. I think we're back on track.
It's all good. We were just getting to know one another. :)
So...when can we go out for that beer?
David, I have not forgotten about your reply, I simply have not had time to respond to it yet.
That's cool. My time has been limited of late, too. Take your time.
David, I think the huge difference between the way you and I look at warrantless wiretapping is that you see it as a law enforcement matter while I see it as a method for gathering intelligence. Unfortunately, using law enforcement language to make my earlier points has obscured what I have been trying all along to say on the subject.
It is because it is my belief that we are dealing with an intelligence matter related to war and not a law enforcement matter that I am willing to grant the government the ability to wiretap without warrants while trying to discover domestic sources of terrorism.
It is within this view that the entire justification for warrantless wiretapping lies. Unfortunately, we are fighting a war where we do not know with great certainty who our actual enemies are because they so easily blend into a far larger, and sometimes innocent, population. Very often, these enemies start out as members of this larger population, only to cross the line into becoming our enemies by their own decision.
How do we gather evidence for the existence of such an enemy using traditional police methods? Unfortunately, I do not see how it can be done without using other--equally offensive to some--methods as warrantless wiretapping.
Again, this whole idea goes back to my firm belief that we are at war and that we are at war with an enemy who benefits from the ability to blend in with an otherwise almost impenetrable population. I am willing to grant the government this power because it represents a power unique to this kind of war. I welcome alternatives, but I do not accept limitations that create greater risk to our nation.
Denny,
There's a lot to untangle in the current situation. You might be right that I view this as a law enforcement matter, but I don't think this is the operative difference in our points of view.
I don't think that either the law enforcement paradigm nor the war paradigm fully articulates our current struggle. As most people keep saying, this is a new kind of conflict. It shares similarities with other conflicts we've had, be they wars or conflicts against criminal enterprises, but the current situation is not completely encompassed by either paradigm singularly. Therefore, an either/or discussion isn't appropriate.
The aims of our enemies are more vast than a criminal undertaking, to be sure. However, the nature of their tactics and their lack of a singular national base also make it unlike traditional war.
Were we at war with another nation, we would likely have to deal with spies among us. Two major differences between the current situation and previous situations exist: 1) While spies previously may have attempted acts of sabotage, our current enemies potentially have greater access to destructive technology. This raises the stakes, but not to the degree that the most hysterical advocates for the war contend. 2) Most importantly though (in my opinion), is that the lack of a national base means that this enemy cannot be defeated in the manner we once would have defeated an enemy nation.
In a war, an enemy nation can be forced to capitulate. This is possible because most nations are willing to play by a more or less standard set of rules, but mostly because there is one accepted, recognizable government that peace can be made with. This is not true of the terrorists. Their paradigm is much closer to a diversified crime organization than to a nation.
This is the first reason why a law enforcement paradigm has at least a partial and significant, though perhaps not complete, applicability to how we handle the conflict. The second is that unlike a war with another nation, we are unlikely -- extremely so -- to ever achieve the total capitulation of the enemy. As you yourself admit, "we do not know with great certainty who our actual enemies are." The diversified nature of their command and control structure makes it highly unlikely that we will ever be able to eradicate the enemy or know that we have.
This last point is of great importance. If, as I suspect, it is true, then we can never come off a war footing with this enemy. Based on the assumptions you put forth, we will be forever at war. This is not an acceptable, tenable, or sustainable way to live. Furthermore, granting warrantless wiretapping rights to our government will allow it to forevermore possess these powers because we will never be free of enemies that meet your criteria -- those that we don't know exist.
Simply put, while you have reason to believe -- in fact, to know -- that we do have enemies, the line of argument you are taking is based in a perpetual paranoia of the unknown that must always be unknown regardless of how much warrantless surveillance we allow.
I do not use the word "paranoia" to cast a personal attack at you, but it is rather, I believe, an accurate description of the approach you and others advocate.
Unfortunately, this is the insidiousness and the effectiveness of terrorist tactics. There has been a lot of hyperbole from (I don't know how else to characterize this, so I'll use too loose language) "the right" about what actions on our part mean the terrorists win. We've been told leaving Iraq allows them to win. We've been told not allowing our government more authority means the terrorists win. We've been told not going shopping means the terrorists win.
Ceding away the fundamental rights of our citizens is the surest, most direct path and definition of the terrorists winning. You've talked, rightly I believe, about the psychological war the terrorists are conducting. You've said they are trying to weaken our resolve.
Part of winning that battle is staying true to the freedoms so many people claim the terrorists hate. In my opinion, we have to be able to win with our principles in tact. We have to demonstrate the strength of our principles. We can't do that by abdicating them every time we're threatened.
So we can't allow the terrorists to make our government act as if everyone -- even Americans -- are suspects. If we do so, our resolve will be weakened.
I don't suppose my feeble attempts to articulate my idea will convince you. You are a student of goverment and history and war. There is little I can add to your education. All I ask is that you step back from your currently held beliefs and review what you know. Look at the whole board. If you can identify (or have identified) a path that sees the enemy defeated with certainty and our country's principles left in tact, you are honor-bound to take it, of course.
It is my belief, however, that your current path cannot achieve either of those goals and will certainly result in a lesser America. If I thought it was the best or only path, I would choose it over death. I don't think it is either.
One other point I'll make. The situation as it has been presented to us is internally inconsistent. We have been told that we have to be perfect, that the terrorists only need to succeed once, that we only have to make one mistake and the terrorists can destroy us. Yet at the same time, the government asks for all these extraordinary powers so that we aren't put at greater risk. That risk, though, is never definitively expressed nor can it be. It's all fear-talk about greater risk.
But we already know we can't be perfect no matter how much access we grant the government. You've admitted as much yourself when you addressed my fears of a government with too much power. You said they couldn't possibly keep track of everyone. And yet, as you've laid out here, that's precisely what they'd have to do to ensure that no hidden or future terrorists escape notice.
The probable cause warrant is both reasonable and effective. Even 9/11 could have been prevented with better communication among our intelligence agencies. It wouldn't have taken warrantless wiretapping to prevent it. And it's not just this "glove" that we've taken off. It's the combination that is so dangerous. We've gotten too comfortable talking about torture, and rendition, and domestic surveillance. Like it or not, we have been terrorized and it is going to take some courage on our part to stop ourselves from giving the terrorists this psychological and structural (governmentally speaking) victory.
Anyway, that's my take and those are my reasons for believing as I do. I believe you have the best intentions, but I don't believe your proposed path is the right one.
David, although it may not seem like it, I actually agree with quite a lot of what you are saying. In optimal circumstances, I am inclined to agree with most of your approach and points.
Unfortunately, the times we face are far from optimal for reasons that could fill many blog posts. Instead, we are on the defensive in a war we did not acknowledge existed when it started and are now well behind our enemy in many critical ways in fighting effectively. This is not to say that we are losing, but it is my estimation that we are not winning either.
As a result, we are in a position as a nation where we are being forced to make less than optimal decisions under less than optimal circumstances in order to make up for lost time and lost ground. Unfortunately, the alternatives to these decisions are even worse than the ones we are making.
Warrantless wiretapping falls into this category for a variety of reasons. The FISA court construct did not work because we do not even have enough information about our enemies to establish even the wider definitions of probable cause that court required. Before we can even go to such a court, we have to know what we're looking for. Warrantless wiretapping is one means of how we are establishing those basic facts.
Let's consider warrantless wiretapping in the context of another highly inoptimal decision our government made that is directly related to the "War on Terror", one which has caused far less consternation:
In 2006, President Bush and the Congress undertook to deploy 6,000 National Guardsmen along the border with Mexico in order to secure it. As it turns out, such a deployment violates existing federal law just as surely as does the current warrantless wiretapping program because, regardless of how we try to explain the facts away, these are 6,000 military personnel being deployed in a law enforcement capacity.
The problem that the government and the American people have, however, is that we ignored the border security question for so long that we were left with highly inoptimal and, as it turns out, actually illegal options for taking the first steps toward fixing the problem.
I believe the same basic model applies to being able to effectively gather intelligence on jihadis operating in the United States, be they foreign nationals or American citizens. Because we waited so long to deal with the problem of fundamentalist Muslim jihadism, we are now directly faced with their activities very often without having any idea who they are before they act.
We are probably a decade away from developing the kinds of deep contacts necessary to infiltrate these organizations in any meaningful fashion, and then because of the nature of the enemy, even those contacts must remain highly suspect. Yet, in the mean time, we cannot wait to try to figure out who these people are and what they are attempting to do.
What's left to us is a tool like warrantless wiretapping. Is it a bad tool? In many ways, yes. Are the other, better tools? Yes, but they are currently unavailable to us. What we are left with is using the tools we have until such time as we can get better ones.
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