Coyote Blog

Laws that require the goodwill and ethical functioning of its participants, without oversight, always worry me.  The companion argument to this is when someone says (and this is popular among Democrats nowadays) all this infrastructure in the government that does not work will be fine when we get our own smart people running it.

It never, never works.  Here is yet another example:  All that extra post-9/11 investigatory power?  Trust us, we only use it on the bad guys.

The Maryland State Police classified 53 nonviolent activists as
terrorists and entered their names and personal information into state
and federal databases that track terrorism suspects, the state police
chief acknowledged yesterday.

Police Superintendent Terrence B.
Sheridan revealed at a legislative hearing that the surveillance
operation, which targeted opponents of the death penalty and the Iraq
war, was far more extensive than was known when its existence was
disclosed in July....

Said the unrepentant leader of this efort:

"I don't believe the First Amendment is any guarantee to those who wish to disrupt the government," he said.

Reading my history, disrupting the government was not the last thing they were trying to protect, it was the first thing. 

A while back, I pointed out that immigration opponents seemed to be depending on American's having poor match skills and a pathetic knowledge of history.  Today in this post from Captain's Quarters we find more statistical funny business.  Captain Ed, like many conservatives, have been stumping for the US to build a big honking fence at the border, nominally as part of the war on terrorism.

Of course according to supporters it is only about security, not xenophobia, which explains why the fence proposal in Congress covers both our northern and southern borders since both are equally porous to terrorists.  Oh, wait, the law only covers the southern border?  Oh.  Well, I hope terrorists can't read a map and don't notice that the northern border is three times as long and in many cases more unpopulated and unguarded than the southern border.

Anyway, another "security" argument by immigration foes is that hordes of criminals are apparently pouring across the border, and walls are proposed as a way to stop them.  The Captain quotes Bill Frist:

One of the most important and most effective ways that we can stop
illegal immigration is through the construction and proper maintenance
of physical fences along the highest trafficked, most commonly violated
sections of our border with Mexico.

Take the case of San Diego. According to the FBI Crime Index, crime
in San Diego County dropped 56.3% between 1989 and 2000, after a fence
stretching from the Ocean to the mountains near San Diego was
substantially completed. And, according to numbers provided by the San
Diego Sector Border Patrol in February 2004, apprehensions decreased
from 531,689 in 1993 to 111,515 in 2003.

Whoa. That sounds impressive.  But, remember what I often say on this site -- correlation is not causation.  Indeed, it is not just random chance that he picked the years 1989 - 2000.  Those were the years that nearly every part of the US saw a huge drop in its crime rate.  Using this data for these years, and presuming Frist is using the crime rate index per 100,000 people, which is the stat that makes the most sense, here are some figures for 1989 - 2000:

Crime Rate Change, 1989-2000:
US :  - 28%
Arizona:  -28%
California: - 45%
New York: -51%

Wow!  The border fence in San Diego even had a similarly large effect on crime in New York State!  That thing is amazing.  Oh, and note these are state figures.  My understanding is that the figures for large metropolitan areas is even more dramatic.  So what happened in 1989 to 2000 is every state and in particular every large metropolitan area in the country saw huge double digit drops in crime, and San Diego was no exception.   But Frist tries to give credit to the border fence.

In case you want to believe that Frist does not know what he is doing with these stats (ie that he wasn't intentionally trying to give credit for a national demographic trend to a border fence in San Diego) notice that 1989 was the US crime rate peak and 2000 was the US crime rate low point.  So with data for the years up to 2005 available, he just happens to end his period at 2000.  Oh, and the new style fences he wants to emulate were actually only started in 1996 (and here, search for "triple fence"), AFTER most of these crime gains had been made.  Correlation definitely does not equal causation when the proposed cause occurred after the effect.

For all of you who always wanted to live in Soviet East Berlin, you may soon get a good taste of that experience:

The first fence, 10 feet high, is made of welded metal panels. The
second fence, 15 feet high, consists of steel mesh, and the top is
angled inward to make it harder to climb over. Finally, in high-traffic
areas, there's also a smaller chain-link fence. In between the two main
fences is 150 feet of "no man's land," an area that the Border Patrol
sweeps with flood lights and trucks, and soon, surveillance cameras.

Below are views of Nogales, AZ and Berlin.  Nothing alike.  Nope.  Totally different.

Finally, I will give the last word to Frist, bold added.

That's why I strongly support the Secure Fence Act of 2006 "¦ and that's
why I'm bringing this crucial legislation to the floor of the Senate
this week for an up-or-down vote. By authorizing the construction of
over 700 miles of two-layered reinforced fencing along our southwest
border and by mandating the use of cameras, ground sensors, UAVs and
other forms of hi-tech surveillance, this legislation would help us
gain control over every inch of our borders "“ once and for all.

"gain control over every inch of our borders," except, or course, for those 3000 5525 miles (350 million inches) to the north where the people on the other side have the courtesy not to speak a foreign language.  But its hard to demagogue well about a threat from Canadians, since they are mostly WASPs like we mostly are, or at least it has been for the last 100 years or so.  54-40 or fight!

Update: Here is that terrifying Canadian border barrier (from this site).  This demonstrates why our terrorist security dollars need to all be invested on the southern border, since this one is already locked down tight.  Heck, there is one of these babies (below) every mile!  Beware terrorists!

And don't forget these terrorist-proof border checkpoints along our northern frontier:

But it's not about race.

Update 2:  Yes, my emailers are correct.  I did not actually give Frist the last word like I said I would.  Gosh, I feel so bad about that.

Update 3:  Welcome to readers of my favorite site, Reason's Hit and Run.  It looks like Texas may soon consider a border fence, though with Louisiana instead of Mexico.

One of the reasons I blog is that the act of writing helps me clarify my thinking on certain issues.  I have written a number of times about my concerns over the "war powers" this administration is taking upon itself.  Arnold Kling's article in TCS Daily helped me clarify a better framework for thinking about my issues.  I can now put my concerns in two categories:

• The administration is going too far in using the war as an excuse to circumvent a number of Constitutional protections, from habeas corpus to search and seizure.  This does not mean that I am necessarily against all new activities, but they need to be initiated within our Constitutional framework.  Take surveillance activities.  Its not unreasonable to think that terrorism demands new surveillance tools.  But the principle we have always followed for surveillance is that Congress authorizes the power and the judiciary gets some type of review of the targets and methods.  Bush seems to have become impatient with separation of powers to the point that he does not even try to engage the other arms of the government, instead using the war to claim a fiat power.  (It should be noted that even when the separation of powers is respected, as with the Patriot Act, mistakes are made and we can go too far.  However, at least we can debate it and there are Congressmen we can hold accountable).
• The second category of problem I have is with the open-ended nature of the war.  Calling this the "War on Terror" is only marginally more precise and limiting than saying we are fighting the "War against Bad Stuff."  If one asks, "Who are we fighting", the administration answers "Whoever the President says we are fighting against".  If one asks "When is it over" the administration either answers "Whenever the President says it is" or else, probably more honestly, they say "not for a long, long time."

In terms of civil liberties, the second point may be the most problematic.  Most citizens will grant the President some special war powers (as in fact the Constitution does), though we can argue whether the current administration has gone too far in defining these powers for themselves.   But if you combine this with letting the administration define exactly who the enemy is and how long the war lasts, it makes for a combination deadly to civil liberties.

Take the example of detention of enemy combatants.  Administration supporters argue that we have always been authorized to hold enemy combatants until the end of the war, as we did in WWII.  And so we did.  We were at war with Germany, so we detained German soldiers we captured until the end of the war.  Note that these are definitions that everyone at the time could agree on -- ie everyone knew what a German soldier was and everyone knew that "end of the war" meant when we marched into Berlin.  Few German detainees were held for much more than a year.  By the way, it is interesting to note that even in WWII, we abused this notion.  The administration defined "enemy combatant" as "anyone in the US of Japanese descent", so that we ended up interning innocent American citizens for years, much to our shame today.

However, in the current "war", an enemy combatant is anyone the administration says is an enemy combatant (at least in their theory) and "for the duration" means as long as the administration cares to hold them, up to and including "forever." 

Conservatives wish to argue that the "War on Terror" is a new kind of war and demands new tools to fight it, which they use to justify all kinds of secret searches and detainments.  Fine, but then it also needs new types of civil liberties checks.  Coming back to our detention example, in WWII it was not really necessary to have some kind of judicial review on the question of whether a captured German soldier was an enemy combatant;  the uniform was a pretty good giveaway.  However, such a review is necessary today, since the enemy combatants languishing at Gitmo (many of who I am willing to believe are bad guys) don't have any identifying uniforms or paperwork.

If I read him right, Kling is saying something similar:  Some security activities that were traditionally not allowed may be necessary, but for every civil liberties give-back there needs to be a countervailing new control or check on government activity:

On the whole, Posner makes a persuasive case for tilting the judicial
balance in favor of reasonable efforts to promote security rather than
strict-constructionist civil libertarianism. However, I believe that
what we need to do is re-build our civil libertarian fortresses, not
simply retreat from them. That is why I favor much stronger accountability for agencies engaged in surveillance. It is why I am proposing here a formal process for naming our enemies.

Just before my body decided to purge itself for a few days, USA Today ran a story that the NSA was doing more than just listening in on overseas calls to suspected terrorists.  It claimed that the NSA was also compiling a database of domestic call records.

The National Security Agency has been secretly collecting the phone
call records of tens of millions of Americans, using data provided by
AT&T, Verizon and BellSouth, people with direct knowledge of the
arrangement told USA TODAY.

This bothers me, as much for separation of powers issues that I will describe below as for any  worry about the data being collected.  Conservatives, however, immediately criticized the article, as summarized well here, making a number of points:

1.  Its old news
Shame on conservatives.  This is the same tired line that Clinton used to drive them crazy with.  The theory here is that once a story has run a full news-cycle, it is then too late to report on it or show any further outrage about it.  Once the political boil is lanced, its time to "move on".  Sorry, I don't buy it.

2.  USA Today is exaggerating
The USA Today and those who picked up on the story  are indeed sloppy, perhaps purposefully to make a better story, in blurring the line between collecting phone numbers and eavesdropping.  To date, the evidence is only that phone numbers were collected, which is in fact less intrusive than eavesdropping.  It still pisses me off, for reasons below.

 3.  The IRS already has more data
Yes, and that bothers me too.  Does anyone really doubt that IRS data has been peeked at and used for political purposes?  And I am flabbergasted at how far conservatives have wandered over the last several decades that they hold up the IRS as a model to be emulated.  But here is the key difference that I will get into in a minute:  The IRS is allowed to collect this data by legislative statute passed by Congress.  This statute includes rules for data management and access, with steps for judicial review and criminal penalties for its violation.  The NSA data base has ... none of this.  No legislative authorization.  No process and privacy protections.  No penalties for misuse of data.  No judicial review steps.

4.  Its no big deal, and its good for you
Maybe.  Or maybe not.  The trouble is that we are only getting tiny leaked glimpses into whatever the administration is doing.  The President has created the theory that he can declare war against a vague and in fact impossible to define target, and then take on absolute dictatorial non-reviewable powers to prosecute this war in any way he likes, and that any steps taken in this war can be considered legitimate steps (rather than overstepping his bounds) based on his say-so alone. 

The problem is not the database per se, but the fact that the NSA and this administration feels it can do anything it wants outside the bounds of traditional separation of powers.  If the NSA needs a phone call database, then the President can go to Congress and solicit such an authorization.  A well-crafted piece of legislation would put strict limits on how the data is used, would provide some sort of outside review of its use, and would provide for stiff penalties for its misuse.  This is what I wrote previously:

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.   

What really irks me about this is the crass politics going on.  Does anyone doubt that if a Clinton White House had been revealed doing this that Conservatives would have been screaming in outrage?  And liberals are, if anything, even funnier.  These are the folks that trust the government but distrust corporate America.  So why is it that they are upset about a transfer of phone records from evil old AT&T to benevolent old Uncle Sam?  Except, of course, because it is being done by a Republican.

More on eroding separation of powers here and here.

Update: This database may be being used to see who reporters are talking to in order to root out leaks.  Anyone uncomfortable now?  And this is priceless:

Under Bush Administration guidelines, it is not considered illegal for
the government to keep track of numbers dialed by phone customers.

Duh.  Under Bush Administration guidelines, nothing the administration wants to do is considered illegal.

More: Several sources have used the Supreme Court decision to make the case that collection of the phone records is legal without a warrant.  Here is a key passage:

Petitioner in all probability entertained no actual expectation of
privacy in the phone numbers he dialed, and even if he did, his
expectation was not "legitimate." First, it is doubtful that telephone
users in general have any expectation of privacy regarding the numbers
they dial, since they typically know that they must convey phone
numbers to the telephone company and that the company has facilities
for recording this information and does in fact record it for various
legitimate business purposes. And petitioner did not demonstrate an
expectation of privacy merely by using his home phone rather than some
other phone, since his conduct, although perhaps calculated to keep the
contents of his conversation private, was not calculated to preserve
the privacy of the number he dialed. Second, even if petitioner did
harbor some subjective expectation of privacy, this expectation was not
one that society is prepared to recognize as "reasonable." When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information  to the police,

First, it would be interesting to see if the SCOTUS would agree that this ruling extends to sharing such information with non-law-enforcement branches of the government (NSA is not a law enforcement arm).  Second, it would be interesting to see if the Court came to the same conclusion if the target for the the data sweep was "every citizen in the US" and not just targets of law enforcement investigations.

Third and most importantly, this decision seems to suck.  This exact same logic seemingly applies to any piece of data submitted to any private third party unless the data is specifically protected (e.g. medical records).  Sorry, but this is wrong.  I should be able to have commercial transactions with third parties without the expectation that the government can take the records for its own use without any kind of a warrant. 

Also, the premise that this ruling is based on is provably false, though only by technology instituted after the decision.  There is an entire industry of phone company services and 3rd party technologies aimed right at this area of phone call (and email; and Internet surfing) anonymity and privacy.  With the Internet for example, there is a very, very clear expectation that sharing information with a company for one purpose (e.g. to complete a transaction) does NOT authorize the company to use or share the data for any other purpose.  This use of transaction data and its limits is a CRITICAL and front-of-mind issue for modern communicators.  It is absurd to say, as the justices did, that:

When
petitioner voluntarily conveyed numerical information to the phone
company and "exposed" that information to its equipment in the normal
course of business, he assumed the risk that the company would reveal
the information  to the police

The implication is that by giving a company data for use in a transaction, we are giving them an unwritten license to do whatever they want with the data.  Do you believe you are granting this?  Is it true that you "entertain no expectation of privacy" in such transactions?  If you agree with this ability, then I assume you also agree that the government should be able to see all your:

• Credit card bills
• Records of who you have emailed
• Records of which Internet sites you have visited
• Records of what searches you made in search engines

These are all 100% amenable to the logic the Justices used in this decision.

I don't mean that law enforcement shouldn't be able to subpoena these records ever.  But they need to at least go to a judge and say "we want to see Warren's phone records from X to Y date because we suspect him of Z for the following reasons."

Does it bother anyone else that the only complaint voiced in this article about government requirements for building in surveillance backdoors into the Internet is about the cost?

Oh, and by the way, note the date on the act in question.  1994 makes it a Clinton-era law crafted after the first attempt to bomb the WTC.  All of you Democrats who feel smugly certain that civil liberties will be safe if only your party was in charge should note how closely the Patriot Act resembles Clinton's proposed anti-terrorism bill.  Just as Republicans have found that politicians shed their small government talk once they are in charge, our country's leadership tends to abandon any past queasiness about trampling on civil liberties once in a position of power, no matter what party they represent.

I guess I avoided it when I was growing up in Houston, but there sure seems to be something in the water down there as first our Houston-raised president, and now Houston's police chief, seem awfully fond of surveillance.  From Tom Kirkendall:

Anne Linehan and Charles Kuffner are two of Houston's best bloggers on local political matters, and they have been covering an emerging story that amazingly appears to be flying below the radar screen of most Houstonians -- i.e., Houston Police Chief Harold Hurtt's
plan announced last week proposing to place surveillance cameras in
apartment complexes, downtown streets, shopping malls and even private homes to fight crime during a shortage of police officers.

Building permits should require malls and large apartment
complexes to install surveillance cameras, Hurtt said. And if a
homeowner requires repeated police response, it is reasonable to
require camera surveillance of the property, he said.

And the Chief's justification for surveillance cameras in private homes?:

"I know a lot of people are concerned about Big Brother,
but my response to that is, if you are not doing anything wrong, why
should you worry about it?"

H'mm. That is not the kind of reasoning that one would find in, say, The Federalist Papers, now is it?

While I bloviated for many screen-inches on wiretaps, detentions, and separation of powers (and here, and here), George Will nails what I was trying to say in about a paragraph.

But, then, perhaps no future president will ask for such congressional
involvement in the gravest decision government makes -- going to war. Why would
future presidents ask, if the present administration successfully asserts its
current doctrine? It is that whenever the nation is at war, the other two
branches of government have a radically diminished pertinence to governance, and
the president determines what that pertinence shall be. This monarchical
doctrine emerges from the administration's stance that warrant-less surveillance
by the National Security Agency targeting American citizens on American soil is
a legal exercise of the president's inherent powers as commander in chief, even
though it violates the clear language of the 1978 Foreign Intelligence
Surveillance Act, which was written to regulate wartime surveillance.

Will seems to think the wiretapping a reasonable approach, and thinks Congress should authorize it, but its very reasonableness or even necessity does not justify executive circumvention of the Constitution:

Besides, terrorism is not the only new danger of this era. Another is the
administration's argument that because the president is commander in chief, he
is the "sole organ for the nation in foreign affairs." That non sequitur is
refuted by the Constitution's plain language, which empowers Congress to ratify
treaties, declare war, fund and regulate military forces, and make laws
"necessary and proper" for the execution of all presidential powers . Those
powers do not include deciding that a law -- FISA, for example -- is somehow
exempted from the presidential duty to "take care that the laws be faithfully
executed."

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.

Via Powerline and the Washington Times comes a report (or maybe a prediction) that Democrats may be preparing to use privacy as the unifying theme of their 2006 legislative agenda and reelection efforts.  This actually echos a suggestion made by Kevin Drum last year (which may be an indication that Democrats are getting smarter, if they are listening to Drum rather than Kos).

John Hinderaker thinks that this suggestion, which would link abortion and NSA surveillance, ranks as either ineffective or "downright weird".  I think it would be fabulous, but, as I wrote in response to Drum's post the first time around, it contains huge land mines for the left:

I am all for a general and strong privacy right.  I would love to see
it Constitutionally enshrined.  But liberals (like conservatives, but I
am answering Drum's question) don't want it.  They want to allow women to choose abortions, but not choose breast implants.
They want the government to allow marijuana use but squelch fatty
foods.  They don't want police checking for terrorists but do want them
checking for people not wearing their seat belts.  They want freedom of
speech, until it criticizes groups to whom they are sympathetic.  They want to allow topless dancers but regulate the hell out of how much they make.  Liberals, in sum, are at
least as bad about wanting to control private, non-coerced individual
decision-making as conservatives -- they just want to control other
aspects of our lives than do conservatives.

It just so happens a perfect example is sitting right at the top of Instapundit this morning:  Teresa Nielsen Hayden apparently takes the drug Cylert to treat her narcolepsy.  For a while, it has been known that Cylert can cause some liver trouble.  She apparently knows this, has a doctor monitor her liver health, but is willing to take this risk because she apparently is fine with accepting some risk of liver trouble in exchange for substantially improved quality of life. 

The problem is, the liberal/progressive Public Citizen group has fought hard and successfully to deny her this choice for her own body.  This type action is not an exception, but rather is fundamental to the left/Democrat agenda, i.e. We are smarter than you about making choices, and we would never risk liver disease to cure narcolepsy (though we have never lived through narcolepsy ourselves) so we are not going to allow you to make that decision for yourself.  Vioxx users, like acute-pain sufferers for whom Vioxx is really the first treatment to allow them to enjoy life again without incapacitating pain, have also been denied this choice.  So have folks who want to get breast implants, manage their own retirement (social Security) funds, ride motorcycles without helmets and drive cars without seat belts.  One case that is quite revealing is NOW's insistence that women, even
at the age of 13, have the ability and absolute right to make abortion
decisions without government intervention, but that these same women are completely incapable of making breast implant decisions so they demand that the government curtail this choice. 

But the list really goes much further.  For example, why isn't it a "private" decision when two people agree without coercion as to how much money one will provide labor or goods or services to the other.  An enormous part of the Democratic platform rests on regulating the shit out of every single facet of this type of private encounter.

Since the left considers sex absolutely beyond regulation, and commerce completely fair game for detailed government intervention, its funny when the two cross, as they did when the ACLU argued that taxation of topless dancers interfered with their freedom of expression.  Fine, but if topless dancing is expression, which it seems to be, why isn't writing a book, designing a house, making an iPod or even cooking great cheese-fries?  Commerce is all about expression, about communication, about private agreements and exchanges.  But I am pretty sure that the Democratic party does not want their privacy stance to go in these directions.

A while ago, I had a fascinating experience actually reading for myself the much-talked about Roe v. Wade decision.  Because I take the 9th amendment seriously, I wasn't struck, as conservatives are, that the judges had created a privacy right out of nowhere.  What I was struck by instead was just how narrow a line the Court tried to walk in saying that a woman's decision to have an abortion (at least in the first trimester) is beyond the reach of government, but nearly every other non-coerced decision we make is still fair game for government intrusion.  It was this distinction, between abortion and every other decision that I found compelling:

However, I hope you see the quandary in which all this leaves abortion
supporters on the left.  Much of their philosophy and political agenda
rests on this notion of "a compelling state interest" in nearly every
facet of human endeavor.  The left pushes constantly for expansion of
government regulation into every corner of our lives.  They are trying
to walk a line, a line so narrow I don't think it even exists, between
there being no state interest in 16 year old girls getting abortions
without their parents' knowledge or consent and there being a strong
state interest in breast implants, painkillers, seat belt use, bike
helmets, tobacco use, fatty foods, etc.  They somehow have to make the
case that that a woman is fully able to make decisions about an
abortion but is not able to make decisions, without significant
government regulation and intervention, about her retirement savings,
the wages she accepts for her work, her use of a tanning booth, and her
choice of painkillers. I personally think she can handle all these, and more.

So, to the Democrats, bring on the privacy issue!  I am sure no one in the MSM will test these contradictions and certainly the Republicans don't want to go here (they are just as invested today in statism in their own way as Democrats).  But we libertarian bloggers should have a good time.

My summary post on attacks against individual decision making from both left and right is here.