Whose Civil Liberties am I Protecting?

I generally don't get worked up by the memes that fly back and forth between various political blogs.  However, one of late is starting to irritate me.  I have seen it all over the place on conservative blogs, but I will quote from James Taranto because I saw it on Best of the Web most recently:

Related to the terrorism-is-no-big-threat claim is the argument that American lives are less important than the civil liberties of terrorists.

Its not the lives vs. liberties part that works me up -- there probably is a real trade-off in there somewhere.  What irks me is portraying concerns about the Patriot Act, indefinite detentions without trial, and eavesdropping outside of the normal separation of powers checks and balances as "concern for the civil liberties of terrorists".

I am sure that there is a name for this kind of semantic trick, though I can't remember it, but I will say its bush league, right out of high school debate.  You could just as easily stump for repeal of the fourth amendment because it is only concerned with the "civil liberties of criminals".

No one except a few crazies cares much for the civil rights of convicted criminals and terrorists.  After all, what could be more of a violation of their civil rights than incarcerating them, but I have seldom seen a bond issue for more prisons that people won't vote for.

No, the problem is with the civil rights of the rest of us who are innocent.  We don't want our email read just in case we are terrorists.  We don't want our houses broken into at night just in case we are drug dealers.  And if we find ourselves in police custody, we want our habeas corpus rights respected and we want to get our due process or be released.

You see, that's the nagging little problem.  Because the people the administration and their law enforcement arms are detaining and eavesdropping on are only "suspected terrorists", or I will even grant you "strongly suspected terrorists".  And there is a whole great world of difference between even a strongly suspected terrorist and a convicted terrorist.  That is what due process and the presumption of innocence is all about.  We have a legal term for a person "suspected" by the police of crime or terrorism:  Innocent citizen.

Yes, I understand that for the police to do their business, they need to be able to investigate suspected criminals.  As I wrote here, we have a process for that - the legislature sets the rules for investigations and searches, the Supreme Court tests the rules against the Constitution, the administrative branches follow the rules, and the courts have various review roles, from approving wiretaps and search warrants to being a source of appeal for habeas corpus violations.  That is why I stated that though I opposed provisions of the Patriot Act, at least it followed this separation-of-powers script.  It is when the administration claims new powers for itself without legislative authority or judicial review that really gives me the willies.

And yes, I know that the counter-argument is that we are at war and the administration and the President as commander-in-chief have the abilities under their powers to do, uh, whatever it takes I guess to prosecute a war.  After all, you can't run to Congress for a vote every time you want to move the troops in a war, can you?

There is a major problem with this argument.  To the extent that the President has all this extra wartime power, the founding fathers put in a very sensible Constitutional provision that the Senate must make a declaration of war before the President has these wartime powers.  And you know what -- the Senate of this country has not declared war since about 1941 on anyone.  Even if I give GWB credit for all the best motives in the world, we cannot have a government where the President can assume all kinds of magic wartime powers AND unilaterally declare war himself (and no, the Senate authorization for military action in Afghanistan was not a declaration of war, at least in this sense).  Effectively the Administration is asking us to a) allow the Administration to define when and who we are at war against; b) allow the Administration to identify, without outside review, who the combatants are in this war; and c) allow the Administration to search or indefinitely detain these combatants that they identified, indefinitely and without review outside of Administration-controlled organizations.

No way.  And I don't think a President has these powers to arbitrarily name who is a threat and detain them without due process even in a declared war - I mean, does anyone remember the embarrassing Japanese internments in WWII?  Were the Japanese internments any different, except in scale, from the powers the administration is claiming today?

Supporters of the war in Iraq have defended that Iraq is better off despite the high ongoing civilian death toll from terrorist acts.  They argue that the people of Iraq are willing to pay the price of dealing with these terrorist attacks in order to gain the status of a free and open state.  I would ask, then, aren't we in the US just as willing to deal with some increased risk of terrorism in order to maintain a free and open state?

I don't consider myself a tinfoil hat guy.  I think many of the security concerns behind the administration's actions can be addressed with some respect to separation of powers, if the administration was just willing to try.  However, it is my observation that the administration gave up trying to work with Congress about 2 years into his first term.  GWB hasn't tried to push any kind of legislative agenda.  He hasn't tried to bring any adult supervision to the gross display of spending excess going on.  He hasn't even used his veto pen once.  It strikes me that the Bush administration decided in about 2002 that Congress wasn't serious (I can sympathize with that) and that they were going to go off on their own and run things by themselves.  Sorry, but no matter how good your intentions, it does not work that way.


  1. KipEsquire:

    I am sure that there is a name for this kind of semantic trick, though I can't remember it...

    Bait-and-switch. Or straw-man. Take your pick.

    Great post. (But you keep saying "Senate" when you mean "Congress" re: declaring war.)

    As the saying goes: The President can only be "Commander-in-Chief" if Congress actually gives him an army to be the Commander-in-Chief of.

  2. Max Lybbert:

    I understand the fixation with Declarations of War, but it's also true that there have only been six declared wars in US history, and that the first year of the Civil War was fought without a declaration.

    Those wars, BTW, were 1812, Mexican-American, Spanish-American, WWI, WWII, and the Civil War.

  3. Tom:

    It's not the Senate that must declare war, it's Congress. Congress, to "declare war", needn't pass a joint resolution with the title "Declaration of War". All it must do is pass a joint resolution that has the effect of authorizing the president to prosecute a war. That's a declaration of war by any other name.

  4. Steve Podraza:

    This is quickly becoming one of my very favorite blogs. Thanks.

  5. Max Lybbert:

    Thinking about the logical fallacy involved, I can list three candidates:

    * strawman (as already mentioned);
    * loaded terms/prejudicial language;
    * false dilemma (you either want American lives or civil liberties for terrorists).

    I think false dilemma fits best.

  6. ks:

    What are your views on civil liberties of people who have served sentence? Views on Megan's law?

  7. T J Sawyer:

    I can't help but wonder if the real problem behind the NSA monitoring issues is simply the inability of laws and policies to keep up with technology. I certainly hope that NSA has the capability of scanning, sniffing and snooping through all calls into the U.S. from every external source. How might the agency properly ask congress for permission to look through all calls from all Al Kaida related numbers to anyone in the U.S. browsing for the words "do it" or "go for it" etc. etc.?

    If you have ever worked in a large corportation, nevermind a government agency, picture the meeting to put together that request!

    I have no expectation of privacy anytime I pick up a cellphone - ask Newt Gingrich about that.

    I certainly have no expectation of privacy on the Internet or over the phone network. Ever talk to anyone who worked behind the frames in a telephone switching station?

    I have no expectation of privacy in my financial transactions. Are you aware of what data collection agencies not to mention credit bureaus know about you? Why should the people we pay to defend us not have free access to the information that "bad guys" have put into that data pile?

    What if Al Kaida has people meeting regularly at one of your campgrounds. Do you really object to FBI/CIA/NSA running their suspect list past your reservation database?

    True, the lives versus liberties argument does invoke a false dilemma. Perhaps people should phrase it more like this:
    What do I fear more - that my granddaughter will grow up under Sharia or that some spook's computer in Washington will read this post before it ever reaches your website and flag it for review because it contains the words Al Kaida and financial?

    More power to the spooks!

  8. Ahmed:

    Our debate topic this year has to do with the authority of the federal government to search without probable cause. I will be sure to point out the fallacies used by our opponents. Nice entry.

  9. alene:

    I'd present two distinctions for consideration.
    1. Intelligence vs. investigation
    For example, data-mining might proceed from seizure of the computer and other records of an identified terrorist. If that info cache contains US contacts (telephone numbers, internet meeting places), simply following the web of contacts, without viewing content, may in itself discern nodes of interaction which set suspicious antennae aquiver. Such suspicion might even constitute probable cause for further investigation. Should we rule out the first step? Should we rule out, in subsequent investigation, the the information which raised the suspicions (intelligence), because it was, by its nature, warrantless, having no specific target?
    2. In matters criminal, we have created all manner of protections on the underlying consensus that it is better that ten lawbreakers go free than that one innocent be wrongly convicted. Nevertheless, some innocents suffer; we do our fallible best. Is the calculus the same when the context is not "crime" but terrorism? I note the difference in the aims of criminal prosecution--to invoke consequences for an act already done, not incidentally to remove that actor from taking further criminal acts--and the object of intelligence gathering on terrorist suspects--to prevent the (criminal) act from occurring.

    Maybe the paradigms are different?

  10. BobH:

    As a long-time reader, I find myself in agreement with your views about 90% of the time. The pattern of disagreement shows that the 10% consists almost entirely of national security/defense issues.

    I'm well aware of the quote attributed to Benjamin Franklin to the effect that those who are willing to trade some freedom for some security deserve neither. While I'm a great admirer of Ben's, I'm afraid he'll have to go on disapproving of me, since I am perfectly willing to make such a trade-off, and in fact consider it incredibly naive to think that reasonable compromises would not be needed.

    Understand that this is a general comment. What constitutes "reasonable" and whether this particular case fits that definition are other matters.

  11. markm:

    The most ever killed by terrorists in one day: almost 3,000 (9/11/2001)
    The most civilians ever killed by democratic governments, using conventional weapons, without a valid military reason in one night: at least 25,000 (Dresden, Germany, February 13-14, 1945.
    The total death toll from terrorism in the last century: as far as I can figure it, about 5,000, certainly less than 10,000.
    The total death toll from unrestrained governments in the last century: Soviet Russia >50 million, Communist China >70 million, Nazi Germany 20 million, the Japanese Empire (no idea - mostly they killed little brown people where no one was keeping score). Then there are the genocide of the Armenians in Turkey, genocides in Croatia, Serbia, and Kosovo, and various African genocides and other conflicts, some of which are still going on.

    So which is more to be feared, terrorists or governments?

  12. Turuk:

    I fear more the terrorists, for the ever-lasting easy justification they provide for any state power expansion... :-)

  13. BobH:

    Mark: My point had nothing to do with the relative merits of terrorists and governments.

  14. Dave:

    I for one think the intelligience community has plenty of tools to do the job with GWB circumventing the processes for protecting the rights of the innocent. He does this stuff and then says "Trust Me". Not on your life! I voted for him twice to my embarrassment and I wouldn't trust him any further than I could throw him with one arm. Beware people who say "Trust Me"!