Coyote Blog

I've gotten mail and comments on some of my surveillance- and detention-related posts, particularly this one here, that boil down to "but warrant-less national security eavesdropping is legal". John Hinderaker at Powerline makes this argument fairly compellingly.  To which I can answer, fine, but whether it is narrowly legal or illegal is a topic for partisan blogs who want to score points for or against Bush.  As one of those weird libertarian guys, my intention was to stand aside from the question of legality and instead pose the question of "yes, but is it right?"

Foreigners are People Too

It is interesting that I have to make this point more and more nowadays: Foreignors are human beings too.  For example, this idea that non-US citizens have (or should have) the same rights we do was one I highlighted in my defense of open immigration:

The individual rights we hold dear are our rights as human beings, NOT
as citizens.  They flow from our very existence, not from our
government. As human beings, we have the right to assemble with
whomever we want and to speak our minds.  We have the right to live
free of force or physical coercion from other men.  We have the right
to make mutually beneficial arrangements with other men, arrangements
that might involve exchanging goods, purchasing shelter, or paying
another man an agreed upon rate for his work.  We have these rights and
more in nature, and have therefore chosen to form governments not to be
the source of these rights (for they already existed in advance of
governments) but to provide protection of these rights against other
men who might try to violate these rights through force or fraud

Speech, commerce, property, association, and yes, privacy -- these are all rights we have as human beings, so that the fact of citizenship in the US should not have any bearing on whether our government should respect these rights (except in the case of war, which we get into in a while).

These issues are oh-so-much clearer when we flip our perspective.  For Americans reading this, ask yourself:

• Does the government of Great Britain (or Russia, or Iran) have the right to wiretap your phone calls at will without warrant or review just because you are not a citizen of their country?
• Does the government of Great Britain (or Russia, or Iran) have the right to detain you indefinitely without access to a lawyer or embassy if a powerful person in their government declares you an enemy combatant?

If you answered "yes", then recognize that the 1979 capture of the US embassy staff in Iran was probably legal by your rules, as was nearly every other detention of American citizens by another country.  If you answered "no", then you need to be worried about what the US is doing in the name of national security, for certainly both Bush and Clinton, among others, claim(ed) these rights.  And if you answered "no" for all other countries but "yes" for us, presumably because you trust our guys but not theirs, I will admit you have some historical precedent, since the US for all its faults has generally acted more honorably than 99% of the other nations of the world over the last 100 years.  But you do need to think about the meaning of the rule of law, and why its always a bad idea to give good men power that you don't want bad men to have.

By saying this, I realize that am I not only out of step with the US appellate courts (as Hinderaker points out) and with the Supreme Court (at least on the detention issue, since they haven't ruled on the warrant-less search powers) but also perhaps with the founding fathers.  While most of the folks who wrote the Constitution understood the notion of rights that are derived from nature rather than from the state, the Constitution is mute on the laws of the US vis a vis foreign citizens (excepts where it comes to war).  It is interesting to note that the Bill of Rights doesn't make any distinctions between citizens and non-citizens - there is nothing, for example, that modifies the prescriptions of the fourth amendment to apply only to searches of US citizens.  One could easily interpret the Bill of Rights as proscribing the actions of the US government against any person of any nationality.  Anyway, if I am in conflict with the founding fathers, so be it -- the Constitution is a fabulous document as totally ahead of its time as would be having 19th century India put a man on the moon, but it was not perfect.

The Magic Words: National Security

You may notice that defenders of these presidential powers tend to play a little verbal slight of hand (in addition to the one discussed here):  They translate the president's powers as CinC to mean "carte blanch for national security issues".  You hear this slight-of-hand so often, one starts to think its written that way in the Constitution, so it is probably good to remind ourselves what that document actually says:

The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called
into the actual service of the United States

That's it.  The president can give orders to the military  -- whether that means he can do anything he wants in the name of national security is a whole other issue.  Folks also seem to want to argue that this CinC power cannot be modified or limited in any way, but that's silly.  The third amendment is aimed solely at the limiting the power of the military.   And certainly the folks who first adopted the constitution and the Bill of Rights believed that the 4th amendment applied to the military as well.  In fact, they would have said especially the military.

The Right Way to do Searches

Here is how we have generally interpreted the 4th amendment:  The legislative branch sets the ground rules, as followed by the Administration.  The administrations selection of targets is reviewed by the Judiciary (warrants) and is also subject to later review at trial (via the admissibility of evidence).  What we try to avoid is allowing the same person to set the rules, choose the target, and perform the surveillance, all in secret and without outside review.  The problems with the NSA wiretapping program is not that it is wrong per se, but that it may violate this process.  The administration is claiming the right to choose the target and perform the surveillance under the own rules and in secret with no possibility of review.   

Declaration of War Needs to Mean Something Again

If there is any part of the constitution that has really gone by the wayside in the last 50 years it is the provisions around declaration of war.  Over the past decades, president's have claimed the power to move forces into action, not just defensively but offensively, without a Congressional declaration of war.  And Hinderaker sees the declaration of war, or the Authorization to Use Military Force
(AUMF) as irrelevant to the legality of warrant-less national security
searches.  He is arguing that the President in his CinC power may search without warrant if it is substantially to fight an enemy.  And, absent an AUMF or a declaration of war, who decides if a group or nation or person is an enemy?  why, the President does.  And, who determines if a surveillance is necessary to fight this enemy? Why, yes, the President does as well.  And who reviews these decisions to make sure the President hasn't chosen to search or wiretap, under the pretext of national security, communists in Hollywood, Martin Luther King, or a self-generated "enemies list" -- no one, I mean, no Administration official in this country would ever do those things, would they?

I have increasingly come to the belief that the AUMF, or declaration of war, is supposed to mean something. (I am not a Constitutional scholar, and don't want to hear about how I don't understand such and such precedent* -- this is my own interpretation).  If one goes back to my first argument above, that all people, not just citizens, are constitutionally protected from our government searching or detaining them without warrant, then the declaration of war is that formal step that is necessary to free the CinC from these restrictions vis a vis a certain named and defined enemy.  The declaration of war, or AUMF, is effectively then the mass warrant, that gives the president the right in his role as CinC to attack those folks with our troops and detain them and spy on them, etc.  And even then, this is not without limit, since none of us are very happy with the Japanese detention precedent in WWII.  This view of the declaration of war is more consistent with the original notion of separation of powers than is the "administration can do anything to protect national security" view.  It allows the President pretty free reign to fight an enemy, including the types of tactics under dispute, but only after the body the founders considered the most sober had approved the war and the enemy (by sober I mean as envisioned by the founding fathers, and not as demonstrated in recent supreme court nomination hearings).

This obviously makes a declaration of war a BIG DEAL, which it should be, rather than just a set piece vote ratifying what the president seems hellbent to do anyway or a statement of moral support, along the lines of a "we support the troops" resolution.  It means that the Congress, god forbid, actually needs to treat the vote with some responsibility and understand the implications of what they are voting for, or else modify the AUMF or articles of war with specific limitations of scope.  And it means Congress needs to think twice and maybe three times before authorizing war against something as nebulous as "A Qaeda" or "terrorism".  And it means that GWB probably is doing nothing illegal, at least in the programs as discovered, but it doesn't mean that the courts or Congress can't change that in the future.

* Constitutional scholars live and die by the great god "precedent", and certainly the legal system would be thrown into disarray if court decisions did not provide precedents for later decisions.  All predictability in the system would vanish.  However, it is more than OK from time to time to go back to the original words of the Constitution to see if the march of serial precedent has somehow taken us off course.  I often liken this to a copier machine.  If you take a plain piece of paper, and copy it, and then copy the copy, and then copy that copy, etc. through twenty or thirty generations, you will end up with a paper that is supposed to be a copy of the original, but in fact is covered with spots and other artifacts that were not on the original.  A series of court precedents can also create such artifacts that can only really be identified not from looking at the last precedent it was built on, but going all the way back to the original Constitution.

A number of years ago, I heard someone (George Carlin maybe?  Commenters help!) ask "What's the worst thing that can happen to you if you smoke pot" and the answer was "Get thrown in jail".  The not so subtle message was that the preventative measures applied to prevent marijuana use were worse than the drug use itself.

I would say this fairly summarizes my fears about government responses post 9/11.  Reason's Hit and Run quotes T.J. Rogers along the same lines:

What's the worst thing that Al-Qaida can do to America? We have
probably already seen it. Of course, the government can talk about
bigger things, like the use of weapons of mass destruction, to justify
its use of totalitarian tactics.

I would much rather live as a free man under the highly improbable
threat of another significant Al-Qaida attack than I would as a serf,
spied on by an oppressive government that can jail me secretly, without
charges. If the Patriot Act defines the term "patriot," then I am
certainly not one.

By far, our own government is a bigger threat to our freedom than any possible menace posed by Al-Qaida.

The worst thing the terrorists can do is not another 9/11, but to push America into abandoning its separation of powers and its traditional protections of individual rights.

Reasonable people can disagree whether the Patriot Act goes too far in violating civil rights.  I personally opposed most of the measures in that act when Bill Clinton proposed them the first time and opposed them again this time around.  However, whether I support the Act or not, at least the Act and its provisions are still following the separation of powers script written into our country's DNA:  Congress proposes new administrative powers vis a vis searches, the administration and justice organizations follow the procedures, with certain oversight and appeals rights granted to the courts.

What worries me more than the Patriot Act is the administration's claiming of broader and broader police state powers in the name of combatting terrorism, whether it be detaining people indefinitely without a warrant or eavesdropping on citizens without a warrant.  I understand that both of these programs have practical goals related to security, but I think that most of these goals can still be reached by continuing to respects separation of powers.  Congress must still set the rules for a program such as detention of suspected enemy combatants, and these rules should include a role for the judiciary to review individual cases.

As a libertarian, I am generally quite content to have Congress go on a 364 day a year vacation.  Maybe they can get together once a year and declare a national asparagus day or a national DVD rental day or whatever.

However, I will say that the debate about rules for military prisoner interrogations and detentions at Gitmo have caused me to make an exception to my general Lassaiz Faire approach.  One of the reasons we struggle with these issues is that, because we are facing the relatively new situation of having our military battle with non-uniformed insurgents not associated with any particular government or military force, the rules to be applied are fuzzy or non-existent.  Without rules, the administration has been making up its own, which activists of various stripes have been challenging in court.

And what is Congress doing?  Most of Congress has spent its time shouting out support or criticism (as the case may be) of the administration, and arguing about which judges should be selected to make sure that the administrations rules are or are not struck down.   I could have sworn that Congress has the primary responsibility for creating rules for these situations, to be enforced and interpreted by the Administration and courts.  Why is it, when there are no clear rules, Congress is the only branch of the government doing nothing?

Isn't it about time that Congress stop shouting encouragement or criticism from the shore and actually wade in with some legislation on these issues?  While I certainly have never been one to accept the Gitmo torture hysteria, its certainly a reasonable role for Congress to set standards for treatment of the type of non-military prisoners we are collecting.  For example, while the rules of Habeus Corpus for such a detainee are not necessarily the same as for a prisoner in the US, there certainly need to be some rules beyond the Administration's current ridiculous position that amounts to "we can hold them at our pleasure for as long as we want".

Update:  OK, I am obviously not keeping up.  I just got emailed a couple of links to some action on this front.  Reason has this:

A handful of Republican senators would like to determine:

(i) What is the definition of an "enemy combatant" who may be
detained by the military outside the ordinary civil justice system?; (ii) What
procedural rules should be employed by military tribunals?; and (iii) Which
interrogation techniques should be authorized, and which
prohibited?

Since these are questions the Supreme Court declined
to answer in its rulings on prisoner detention, it's nice to see that other
branch of government assuming a slightly less supine position--almost as if the
Constitution established it as a counterweight against the executive and the
judiciary.

Apparently the Bush administration, which could not manage to find the veto pen when the huge expansion of the already bankrupt Medicare system was in front of them, is announcing itself ready to veto anything:

that would restrict the President's authority to
protect Americans effectively from terrorist attack and bring terrorists to
justice, the President's senior advisers would recommend that he veto the bill.

Marty Lederman has much more analysis here.  His observation:

Heaven forbid Congress should have the nerve to actually exercise its
authorities under Article I, section 8, clauses 10, 11 and 14 of the
Constitution"”which empower Congress to define and punish Offences against the
Law of Nations, to make Rules concerning Captures on Land and Water, and to make
Rules for the Government and Regulation of the land and naval Forces. For to do
so will invariably hamper the Executive's ability to keep the Nation safe from
terror.

Isn't this just a tad too much arrogation of power, even for this President?

Well, Newsweek has admitted that it screwed up.  Big time:

WASHINGTON (Reuters) - Newsweek magazine said on Sunday it
erred in a May 9 report that U.S. interrogators desecrated the
Koran at Guantanamo Bay, and apologized to the victims of
deadly Muslim protests sparked by the article.

Editor Mark Whitaker said the magazine inaccurately
reported that U.S. military investigators had confirmed that
personnel at the detention facility in Cuba had flushed the
Muslim holy book down the toilet.

The report sparked angry and violent protests across the
Muslim world from Afghanistan, where 16 were killed and more
than 100 injured, to Pakistan to Indonesia to Gaza. In the past
week it was condemned in Egypt, Saudi Arabia, Bangladesh,
Malaysia and by the Arab League.

On Sunday, Afghan Muslim clerics threatened to call for a
holy war against the United States.

"We regret that we got any part of our story wrong, and
extend our sympathies to victims of the violence and to the
U.S. soldiers caught in its midst," Whitaker wrote in the
magazine's latest issue, due to appear on U.S. newsstands on
Monday.

It is not Monday morning quarterbacking to say that they should have known better -- many observers noted the danger right off the bat of posting such an inflammatory story based on only a single anonymous source.

The point I want to make is a different one than the obvious MSM-continues-to-slide-into-the-abyss observation.  That is:  We really, really seem to have dumbed down the whole "torture" thing.  When I grew up, torture was pulling out someones fingernails or whacking their genitals with a stick while they were tied to a cane chair or maybe starving them in a pit for a few weeks. 

Here is my fervent hope:  If I ever find myself imprisoned by hostile forces, I pray that they will torture me by sitting me in a chair and having me watch them flush books down the toilet.  The toughest part will be acting like I am really suffering watching a copy of some document I respect, maybe the US Constitution or Atlas Shrugged or the latest Sports Illustrated Swimsuit issue, swirling down the pipe.  Then, if that does not work, I hope and pray that they then resort to stripping me naked and taking pictures of me in a human pyramid with other prisoners.  I just hope they don't find out that I already did something similar in college.

By the way, while we are inventing a kindler-gentler torture, can we also tone down our dedication to icons?  I have never understood the need to ban Koran flushing or American flag burning.  Both the Koran and the flag are symbols that have meaning to each individual.  If someone wipes their butt in public with the American flag, my  respect for the US and what it stands for is in no way tarnished - only my opinion of the flag-wiper has changed.

UPDATE:  WOW!  How did I miss this one?  I really, REALLY hope they choose this torture for me:

One female civilian contractor used a special outfit that included a
miniskirt and thong underwear during late-night interrogations with
prisoners, mostly Muslim men who consider it taboo to have close
contact with women who aren't their wives...

The female interrogator wanted to "break him," Saar adds, describing
how she removed her uniform top to expose a tight-fitting T-shirt and
began taunting the detainee, touching her breasts, rubbing them against
the prisoner's back and commenting on his apparent erection....

In November, in response to an AP request, the military described an
April 2003 incident in which a female interrogator took off her uniform
top, ran her fingers through a detainee's hair and sat on his lap. That
session was immediately ended by a supervisor and that interrogator
received a written reprimand and additional training, the military said.

Please, no.  Anything but that.  Las Vegas better watch out or it may start losing visitors to Gitmo.  I wonder if this is going to cause a problem for the ACLU, which has been opposing these interrogation techniques at Gitmo.  After all, doesn't this woman have a right to free expression?

Postscript:  By the way, I am serious that I think the media has purposefully dumbed-down the definition of torture to improve their story, and in the process has hurt the US internationally.  However, while I find most of the torture accusations a joke, I still absolutely oppose the whole Guantanamo Bay indefinite detention camp concept.  I don't like allowing US authorities to set up a civil-rights-free zone, and I think it is an incredibly slippery slope that we are climbing on.   And yes, I say this with full knowlege that some bad folks could be released back into the wild.  Guess what -- the American justice system does this all the time.  We have 200 years of history of preferring to let guilty parties go free rather than letting innocent parties rot in jail, and I am not ready to overturn our pretty succesful precendent on this matter.

UPDATE: And to be clear, this is torture, or close enough.  Its good these folks are being brought to justice.   I encourage the media to keep up the pressure on true misconduct -- the gratuitous "wrapped-them-in-the-israeli-flag non-tortures just dillute our focus.  I guess I would also encourage those of you who want to extrapolate from these events to a condemnation of the US military as a whole to inform yourself.  The US military, like any institution of human beings, has criminals in it.  However, that being said, our military has been by far the best behaved occupying force in history, bar none (And, if you don't think they should be occupiers at all, well, blame the politicians that sent them).  For every story of atrocious behavior by a US soldier are 20 stories of soldiers being fair and kind.  The fact that these 20 other stories don't make the paper doesn't make them any less true.