Occasional Notes: We Told You So Edition
Jason Kuznicki on Jan 5th 2006
A little linkblogging below the fold.
First, drop everything you are doing and read Radley Balko on the outlook for 2006. Radley, where ever would we be without you?
As Ye Sow… Via Pharyngula and DefConBlog, we read the following:
OKLAHOMA CITY — An executive committee member of the Southern Baptist Convention was arrested on a lewdness charge for propositioning a plainclothes policeman outside a hotel, police said.
Lonnie Latham, senior pastor at South Tulsa Baptist Church, was booked into Oklahoma County Jail Tuesday night on a misdemeanor charge of offering to engage in an act of lewdness, police Capt. Jeffrey Becker said. Latham was released on $500 bail Wednesday afternoon.
Latham, who has spoken out against homosexuality, asked the officer to join him in his hotel room for oral sex. Latham was arrested and his 2005 Mercedes automobile was impounded, Becker said.
On the one hand, this sort of thing ought to be perfectly legal. A whole generation of gay activists fought a long and difficult battle precisely to win sexual freedom for consenting adults. They fought the good fight, and I am thoroughly proud of their accomplishments. Police entrapment of this sort is wrong, it’s unconstitutional, and it should be stopped.
On the other hand… bwahahahaha.
Let’s postulate for a moment that the gay rights movement has succeeded so thoroughly that as of this writing, only repressed, self-hating, bigoted hypocrites get picked up for propositioning unwilling men in public places. And those without such hangups simply meet in explicitly gay venues: online, in bars, or at the good old-fashioned bathhouses, where they get all the gay sex their little hearts could ever desire. Would this still be a violation, however small, of our liberties? Perhaps. But I can’t say I’d be crying buckets.
What would the Founding Fathers Do? Emily Messner asks this question in her always-thoughtful blog The Debate. She quotes James Madison as follows:
“[A] man has a property in his opinions and the free communication of them. …He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”
It’s a favorite quote of mine, and one that Sandefur has put to good use as well. Messner writes,
For officials of the government to monitor the communication of these thoughts and opinions — making themselves privy to intellectual property without the owner’s consent — is an affront to our right to keep our property to ourselves or to share it with only a select few. Of course, such surveillance also violates the implied right to privacy [scroll down to Amendment IX here]. It limits one’s liberty, too, in that with the knowledge of surveillance comes self-censorship, thus suppressing the right to free expression.
That is not to say these rights should be absolute, but if they’re going to be infringed, the government needs to make a compelling case that there is a national interest in doing so. That is a case that should be made before a court — even if it must be a secret court, like that established by the Foreign Intelligence Surveillance Act. Thanks to our separation of powers, we can trust our government enough to have a secret court; we cannot trust one branch of government to go it alone.
Rationales: And let’s consider just why they’re going it alone, too. Glen Greenwald is well to the left of me politically, but he makes some excellent points here:
Among those who now recognize that the Bush Administration has not just deliberately and repeatedly broken the law, but is literally claiming that George Bush has the “wartime” power to continue to break the law, there is a growing impatience to move to the next step – to take action to ensure that there are serious consequences from Bush’s brazen law-breaking. But in order for that to happen, Bush opponents must finally overcome the one weapon which has protected George Bush again and again: fear. Fear of terrorism is what the Administration has successfully inflamed and exploited for four years in order to justify its most extreme and even illegal actions undertaken in the name of fighting terrorism.
…literally for four years, this is what Americans have heard over and over and over from their Government – that we face a mortal and incomparably powerful enemy on the precipice of destroying us, and only the most extreme measures taken by our Government can save us. We are a nation engaged in a War of Civilizations whose very existence is in imminent jeopardy. All of those plans for the future, dreams for your children, career aspirations, life goals – it’s all subordinate, it’s all for naught, unless, first and foremost, we stand loyally behind George Bush as he invokes extreme and unprecedented measures necessary to protect us from this extreme and unprecedented threat.
It is that deeply irrational, fear-driven view of the world which has to be undermined in order to make headway in convincing Americans that this Administration is engaged in intolerable excesses and abuses of its power. The argument which needs to be made is the one that we have seen starting to arise in the blogosphere and elsewhere: that living in irrational fear of terrorists and sacrificing our liberties and all of our other national goals in their name is the approach of hysterics and cowards, not of a strong, courageous and resolute nation.
Hear, hear. It will one day be recognized that America could never be wiped out by a bunch of lunatic fundamentalists hiding in caves on the far side of the world. Can they hurt us? Of course. But ruin us? Please. Only we have the power to do that.
I am reminded of H. L. Mencken, who chided Americans for being not the bravest of nations, as they liked to think themselves, but the most cowardly. He went on for pages about it, back in that age when newspapermen still could, but the best lines are the following:
Who remembers that during the Spanish War, the whole Atlantic Coast trembled in fear of the Spaniards’ feeble fleet — that all New England had hysterics every time a strange coal-barge was sighted on the sky-line, that the safe-deposit boxes of Boston were emptied and their contents transferred to Worcester, and that the Navy had to organize a patrol to save the coast towns from depopulation? Perhaps those Reds, atheists, and pro-Germans remember it who also remember that during World War I the entire country went wild with fear of an enemy who, without the aid of divine intervention, obviously could not strike it a blow at all — and that the great moral victory was gained at last with the assistance of twenty-one allies and at odds of eight to one.
Only a red, an atheist, or a pro-German would ever question American bravery. My, that does sound familiar. And I’m also reminded of this post of mine from several months ago, where I made much the same point:
The American people, who once faced down nuclear missiles rather than surrender their liberties, have replied to the Padilla case by shrugging and changing the channel, so cowed are they by the long shadow of September 11…. Threaten them from afar, and Americans become belligerent (as often they should). But attack them at home, and they will assent to whatever arbitrary authority presents itself. Anything, anything to buy a little safety.
It’s about time we stop thinking this way, get serious about the serious dangers (like unsecured nuclear weapons), and treat the rest not as a threat to our very civilization (which it clearly is not) — but merely as one gross evil among many others in this deeply flawed world of ours.
Filed in The Basement
I’ve blogged about this long long ago on a now defunct blog and won’t belabour the point, but I’m convinced that far more Americans are motivated by justice, vengeance, or moral outrage than they are fear. I’m not afraid of another September 11 scale attack - it’s quite unlikely to hurt me or anyone I know. But since we’ll never have a government willing to drop napalm on the little fuckers dancing in the streets of the Middle East afterwards, I’d just as soon prevent it. Letting the depraved morons think they “won one” would cause me far greater disutility than the worst ravings of paranoid Bush bashers made reality.
Example - how many of the LGF crowd would you say are motivated by “fear”? Not a damn one. Racism, hatred, and somewhat more pure motives I discuss above, though…
Jason,
I’m still not convinced the law was broken, in that the NSA wiretaps were done by dumpster diving in the datastreams on International phone switches tapping some 180,000 calls per day. Getting warrants for them would swamp any system for vetting warrants weakening the warrant approval process possibly beyond repair. Furthermore no human is listening, just voice-recognition/keyword searching software. For more of my confusion on this, see this short post.
As to the Padilla case, I think the indifference (as opposed to fear of 9/11) is the main motivator. Indifference related to being in a class and social circle more than fear or ignorance of legal principles leading to why it is ignored. “We” ignore Padilla because we think he was poor, a nut, and his behavior so orthongonal and unlike ours that “we” would not fall prey the same loss of rights that he has faced. Is that assumption correct? Is it safe? To be honest, I don’t know.
Dylan —
I agree that none of the LGF crowd would say that they were motivated by fear. Sure. But then, consider what their response has been: Has it at all been proportionate to the threat? Has the revulsion and hatred they’ve shown toward all of Islam had anything to do with the true scale of the attacks? I really can’t see it that way. And as to your comments on how we should treat civilians in the Middle East, frankly, I find them repugnant. I don’t give a damn what they think about America: If they wish to think that they have “won,” or that goodness or decency or justice had prevailed, well, it matters not at all to me. They’re still wrong, and that’s comfort enough. I don’t need to bomb them, because I do not fear them. How about you?
Mark –
See Sandefur’s post downblog for a very clear explanation of how this program seems almost certain to have broken the law. I agree that we don’t have all the details yet, but the consensus among the PL writers who have opined so far seems to be that something is gravely amiss, and that laws do indeed appear to have been broken.
As to Padilla, yes, he was by all indications a nut. He was perhaps even a dangerous nut. But if he was so self-evidently dangerous, and so self-evidently a nut, then we stand nothing to lose by putting him on trial openly. We did the same with Charles Manson, after all.
But what we stand to lose by refusing him a trial is tremendous: We have surrendered in principle the idea that all people deserve a fair trial, and that’s something I’m not willing to give up.
Jason,
Sandefur’s post doesn’t mention (to my admittedly somewhat cursory read) anything about any issue relating to non-human or automated wiretapping. Also, the numbers involved 180,000 per day (including interntionalinternational calls using domestic switches) make obtaining warrants prohibitive. I also didn’t see any mention of whether completely automated selection and monitoring of calls has any bearing on the legality. It seems to me that it might have a bearing on the ethical nature if not the legal nature so long as the computer has not passed the Turing test :-). I could see a situation where warrants might be required or necessary only when the endpoints of the calls are identified by human agents and that perhaps those warrants might be obtained (via FISA-like statute) after the fact. That would trim the numbers down to manageable size. It seems to me that there is no way a human court could evaluate 180,000 warrants per day in any meaningful way.
I understand the principle and what we stand to lose by refusing him a trial and I agree with you on that matter. However what I was trying to say is that most people disgregard his situation because he is so far out they don’t see themselves caught in the same situation, i.e., when they ask the question “could that happen to me” their answer is negative because he was a nut (who might be dangerous).
Mark,
If seeking warrants for dumpster diving the datastreams of 180,000 calls per day is too burdensome, and would weaken the warrant approval process, isn’t that an indication that President Bush should’ve sought legal relief from the Congress? Instead, he chose to ignore the law, classifying the program to keep Congress quiet. I’m afraid I don’t see how our principles are served by that. If the president can assume plenary powers as our new standard, we don’t have to worry about terrorists destroying us from the outside. The destruction from the inside will be thorough enough.
Tony,
Three things. The Administration thought secrecy was key, which was why they informed a limited number of Senators. Secondly, I don’t know what legal (or ethical) implications automation has on the process. Few people are discussing that aspect. Third, typically it seems likely (but I’ll admit I’m in no way an expert) that warrants are normally obtained and are attached to an individual or locale. Reason for needing the wiretap is then given and the judge decides if that is reasonable. However, these calls were not selected on any basis like that, thus the warrants requested would be selecting and approval of calls based on search engine type criteria in a given data environment. To me that seems an odd warrant. Does the fact that no human agent reviewed reviewed the vast majority of these calls have any bearing on the case? That factoid has not entered into discussions like those which I’ve seen on this site for example (or any other).
It seems to me that setting up a (secret) court or procedure to review search engine procedure might be called for, but I’m not sure that we have many jurists qualified to analyze and make an informed decision based on technical algorithmic ephemera. Another legal question might be what to do with the names and phone calls that fall out of the automated procedure, i.e., what sort of notification with the Judiciary might be required.
The point is that this is a new technology and a new methodology very different than wiretaps, which is why the Administration might feel that laws covering wiretapping did not cover them well. I’m certainly no legal expert, but how are new technologies (especially if developed under “wartime” secrecy) dealt with normally? We expect the Administration to uncloak and admit to debate … but how? Backscatter X-Ray imaging technology is another technology I’ve heard of in use in Iraq which will have legal and ethical questions to answer when it “comes home” in the coming year(s).
Finally, do you (or any others out there) know why telephony has been assigned the role of private and not public speach?
["...the numbers involved 180,000 per day (including international calls using domestic switches) make obtaining warrants prohibitive.." --Mark Olson]
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…so, the 4th Amendment is automatically void if government agents judge themselves (..or their equipment) ‘burdened’ by their desire to intercept many private communications ??
The American rule-of-law permits no such ‘convenience’ or self-judgments for government snoopers — no matter what the reason proffered.
The American criminal-justice system could be made much so more efficient … if we simply abolished the huge ‘burden’ of trials, evidence, juries, due-process, etc. — and let the police handle it all quickly & quietly.
There seems some strange notion that federal government agents have an inherent legal ‘right’ to wiretap as they see fit — and that the liberties guaranteed in the Constitution must bend to their wiretap-whims.
Strict adherence to the 4th Amendment is by far more vital to the security of the American citizenry than any wiretaps or NSA domestic surveillance imaginable.
Mark –
You write,
For the sake of argument, let’s call it “an odd warrant.” Clearly, then, the executive should go to the legislature and ask for an expansion of powers, and after that, to the judiciary, to obtain said “odd warrant.” It cannot simply go its own way here. Were this the case, then any new technology could, by the same argument, be covered under a similar executive privilege: “The founders never imagined automobiles, so clearly a new situation exists,” says president Theodore Roosevelt. “I have no choice but to go it alone, and to make up rules as I see fit, in secret, with no review by the courts and with no guidance from Congress beforehand.” This is clearly improper, and the same is true here.
But as to the difficulties that the PL writers have with the program, they are not so much in the data mining aspects of the program per se (I admit I don’t know enough about these aspects beyond mere allegations) as with the provisions of existing law that allowed for warrantless wiretaps of specific telephone numbers only within the first fifteen days of a war. After that, the president is directed, under law, to ask Congress for more authority. He did not do so, and this is almost certainly a violation of the law. Here is the post that covers the question:
http://positiveliberty.com/2005/12/robert-levy-on-fisa.html
[...] 3) Do you agree with the position—recently quoted approvingly on this blog by Dr. Kuznicki—that Islamic terrorism is not a serious threat, but a hobgoblin used by the Bush Administration to increase its authority? [...]
[...] 3) Do you agree with the position—recently quoted approvingly on this blog by Dr. Kuznicki—that Islamic terrorism is not a serious threat, but a hobgoblin used by the Bush Administration to increase its authority? [...]
[...] 3) Do you agree with the position—recently quoted approvingly on this blog by Dr. Kuznicki—that Islamic terrorism is not a serious threat, but a hobgoblin used by the Bush Administration to increase its authority? [...]
[...] Follow-ups II: Also from the Blade comes this courageous and very classy blog entry about Lonnie Latham, an anti-gay Baptist minister who was arrested for “lewdness” when he propositioned an undercover cop — a crime that ought not to be a crime at all. (Positive Liberty readers may remember Latham’s story from my post of January 5.) [...]