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December 28, 2005

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» Wednesday News Roundup from ACSBlog: The Blog of the American Constitution Society
The National Archives has released more documents pertaining to Supreme Court Nominee Samuel Alito's record while he served in the Justice Department in the 1980s. Most are simply documents he was cc'd on, but some are his own work. One... [Read More]

» Wednesday News Roundup from ACSBlog: The Blog of the American Constitution Society
The National Archives has released more documents pertaining to Supreme Court Nominee Samuel Alito's record while he served in the Justice Department in the 1980s. Most are simply documents he was cc'd on, but some are his own work. One... [Read More]

» Spying on American Citizens; Domestic Spying from ~Neophyte Pundit~
One of my newest blog finds is American Future. Today Marc posts on the breathless Dimocrats that are beginning to call for the impeachment of Bush for "spying on AMerican citizens." Recent polls by Rassmussen have shown that the American... [Read More]

» The Presidents Inherent Power from The Absurd Report
Inherent Power will drive the Dimocrats over the edge. ... [Read More]

» Charles Fried offers "The case for surveillance:" from City Comforts, the blog
Daddy knows best. If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and no... [Read More]

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Seattle Man

Anonymous,
Sure it's worth considering. Connecting the dots on how limiting our own freedoms helps us to fight bad guys is also worth considering. (I don't think you'll be able to get very far in doing that.)
But in any case the only way to consder such changes is in the fresh light of day, not skulkiing around in the dark of night as the Administration has done.
If indeed we need to adjust the Constitution to wage a "war on terror" (yes, I am derisive that one can fight a military tactic) then GW Bush should at least have the manliness and vigor to voice the issues in public.

Anonymous

Seattle Man:

You're point on secrecy is well taken. However, it does make my comparison to the Constitutional Convention all the more apt. In that case, secrecy was considered essential to secure a desireable, albeit at the time illegal, objective. Perhaps the secret monitoring of domestic communications with suspected "terrorist" implications is similarly essential, and similarly illegal.

To avoid future problems with semantics, perhaps we should refer to the current conflict against Al Quaeda and similarly-minded organizations as the "war against terrorism". In any event, I am not suggesting that all civil liberties be sacrificed in this cause, but instead that the 4th Amendment be reevaluated to allow for this type of surveilance. While I agree that the derrogation of civil liberties is a serious matter, I assume you would agree that so to is the threat terrorists pose to life and liberty in this country, and defeating them will require serious and delicate balancing between those two interests. One cannot presumptively prevail over the other in all circumstances. Connecting the dots from a starting point of a government impotent to gather intelligence against terrorists to that starting points inevitable conclusions also does not get us very far.

I must confess that I am not familiar with the relevant statutes in this discussion, and as such, cannot contribute much more than my confessedly small historical and constitutional observations, but I appreciate the education on the more specific and weightier issues.

Anonymous

I apologize for the extra post, but my suggestion on the semantics was misspelled, and as such, does not really solve are problem. I meant to right "war against terrorists".

Seattle Man

"...I assume you would agree that so to is the threat terrorists pose to life and liberty in this country, and defeating them will require serious and delicate balancing between those two interests."

Not in the least do I agree your statement above without discussion and examples. On what basis would I make such an assumption? We fought communism for 40 years under the Consitution. The burden is on proponents of change to explain why we need to make them.

I think that the real secret in front of us is that the Bush Administration has no real idea how to deal with Islamo-fascism, terrorism or whatever you want to call it. It uses secrecy not as a tool to combat the enemy but to prevent its own citizens from seeing that it has no real understanding of the problem or the solution and that we stand essentially undefended. "Secrecy" is a diversionary tactic.

More generally, if there are indeed reforms needed in our intelligence-gathering, then bring it publicly to Congress for debate and discussion.

Anonymous

As requested, let me provide some examples of why we can safely assume that terrorism should be treated as a serious threat. I can provide over 3,000 examples, from the morning of September 11.

That attack alone (and there are numerous other examples of the threat of terrorism to this and many countries, too numerous to be recounted) provides sufficient basis for the assumption that terrorism deserves more than a furrowed brow and a nervous glance before giving presumptive weight to "freedom of privacy" over "freedom from being incinerated in the workplace by exploding jet fuel". I think you'll find that most value the latter at least as much as knowing that no one is reading their emails.

I apoligize if the above gives the impression I do not value privacy. I certainly do, but as someone who lost loved ones on September 11, this is a particularly sensitive subject.

As to my burden of showing that change is necessary - obviously our methods of protecting ourselves from terrorist attacks pre-9/11 was inadequate. Perhaps because improper weight was giving to privacy concerns. Perhaps that improper weight resulted from the current formulation of the 4th Amendment, or at least prevailing jurisprudence on how that amendment is to be interpreted.

As to your secrecy argument, wouldn't an open discussion of methods of surveillance, what phrases in wire communications or behaviors trigger surveillance, and a host of other specifics, provide a road map for evasion to our enemies? Secrecy is essential in warfare - the chief executive cannot consult with Congress to determine the timing and location of attacks, who informants are, or even how intelligence is gathered, without risking lives.

Anonymous

As to your comparison to fighting Communism:

1. Communism was a movement embodied by organized states. It is entirely different than dealing with international terrorist organizations. Apples and oranges.

2. We did not necessarily fight Communism "under the Constitution". The Cold War (and those parts of it that were not so "cold") had numerous secretive, and even unconstitutional aspects, lest we forget the Iran/Contra scandal. Indeed, fighting Communism led to many official acts of surveillance by our government on its own citizens that were both secretive and of questionable constitutionality.

Seattle Man

Anonymous,
You answered a point I didn't make. I did not say that there were no danegrous people in the world who wish to do us (in the USA, Europe etc etc) harm. Of course there are.

The issue is why you assume that fighting these people requires abridging our own freedoms. Why do you assume that? Our enemies are motivayed by some sort of weird ideology and they use terrorism as a tactic. I am not suggesting that we don't need intelligence on their activities.

But, to answer your question about disclosing tactics with one simple example, wouldn't it be an extremely effective tactic to disclose that NSA is reviewing all emails for particular patterns. You don't have to disclose in public what the patterns actually are. But the mere common knowledge that NSA was doing such surveillance would put a biug crimp in the bad guys plans and make it more difficult for them to communicate as they would have to develop all sorts of silly codes and that would give them more chance to slip up etc etc. I think that a certain diegree of transparency might actually aid intelligence.

At any rate, I don't really think we are going to be able to either persuade or, alas, even inform each other.

So best of luck to you.

Matt Wittkopp

I am gay.

Matt Wittkopp

Please excuse the previous comment. Someone was messing around on my account. Thank you.

Matt Wittkopp

If the webpage moderator could kindly delete the previous comment, it would be much appreciated. Thank you.

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