Civil libertarians are getting all torqued up again over the warrantless wiretapping provision about to pass Congress. I don’t see what the big deal is. After all, National Review Online’s Andrew McCarthy wrote an article last week which clearly explains that the Constitution does not require a probable cause standard for wiretaps:
“There are two core flaws in our surveillance law, namely, the “probable
cause” trigger for monitoring and judicial oversight. The compromise leaves the
former unaddressed while exacerbating the latter.Probable cause is a courtroom
standard, the quantum of proof ordinarily required to justify government
intrusion on the privacy of an American’s home or private papers. It means the
government must have strong indications that a crime has been committed before conducting such a search.The standard has no place in national-security surveillance against foreign threats. If you have probable cause, you already have strong indications that someone is a threat. That’s too late. The challenge in today’s threat environment, dominated by international terror networks that embed sleeper cells among us to carry out mass-destruction attacks, is to figure out who is a threat. That cannot effectively be done on a probable cause standard. The Constitution does not require one — it mandates only that searches be reasonable — and hence most security searches (such as those occurring as one enters the country or tries to board an airplane) do not require probable cause, much less a judicial warrant.” (Emphasis mine).
Just to make sure, I checked the text of the Fourth Amendment, which states,
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis mine – again).
Granted, those who are unfamiliar with the nuances of Constitutional law might read the term “probable cause” to mean “probable cause,” but clearly they would be mistaken. If McCarthy isn’t worried about this, then why should we be? After all, National Review is a conservative publication, and as we all know conservatives are for limited government. Umm…right?
I seem to recall conservatives frequently bemoaning Bill Clinton’s ability to “compartmentalize.” That is, to file away and seal off any inconvenient pieces of information so that they didn’t distract him from doing whatever it was he had already decided to do. Surely McCarthy in particular and neoconservatives in general are doing exactly that when they seek to expand the government’s police powers while continuing to pay lip service to the principles of limited government.
This is yet another example of the schizophrenic nature of today’s GOP. One the one hand, they still cling to some dim notion that government should be limited. On the other, they believe the Constitution can and should be ignored whenever “national security” is involved. When it comes to increasing the police power, the GOP jettisons its usual skepticism of government programs and adopts the belief that in this case the government will limit itself to just “going after the bad guys.” And yet if one were to ask a conservative to name a single government program that has ever remained within its original scope, he would immediately respond that there has never been one.
In this sense, the Democrats have an advantage over the Republicans. Democrats believe that government exists to manage every aspect of human existence, so whatever idiotic proposal they come up with only serves to further that belief. Granted, their philosophy is deeply corrupt and harmful, but it is at least internally consistent. The GOP, on the other hand, has to grapple with the inherent conflict between its limited government rhetoric and its big government reality.
By cheering on their preferred big government programs in the realm of surveillance, Republicans imply that expanding the police power somehow doesn’t “count” as expanding government. Nevertheless, they quickly object when that very same police power is inevitably used against individuals and businesses in the economic sphere.
In this regard they are not alone. The Democrats likewise believe that they can spend decades feeding this government monster so that it may bestow innumerable benefits on the populace, but then express shock and horror when that same monster goes overseas and eats some villagers. Neither group seems capable of understanding the link between the welfare state and the warfare state. One begets the other, and the nature of government is such that it cannot be expanded in only one direction.
With regard to the immediate issue of warrantless wiretaps, even if you believe that the current administration has only used them to listen in on suspected terrorists, do you also believe that all subsequent administrations will show similar restraint? Keep in mind that the current FISA requirements allow the government to begin surveillance first, and then request a warrant up to 72 hours later – with a 99.97% probability of success. Under the new bill winding its way through Congress, this time period will be extended to seven days.
If the contributors to National Review had their way, though, this already low barrier would be eliminated altogether, and there would be no judicial check over the executive branch at all in this regard. With no possibility of review, there would be nothing whatsoever to prevent wiretaps from being used against American citizens residing in this country who are not suspected of any criminal activity. Given that all government programs tend to grow beyond their initial scope (think income tax, the RICO act, FHA loans, etc.), domestic surveillance of any and all American citizens would be virtually assured.
There are plenty of people who have no objection to that. After all, I don’t have anything to hide, so why should I care if someone is listening in on my phone calls? I care because a free society is one in which the government is constrained and where individual privacy is respected. A police state is one in which the people are constrained and have no such expectation of privacy. In a post-9/11 world, the cries for expanding the police state may well drown out the calls to defend freedom, in the mistaken belief that there is a trade-off between liberty and security. Unfortunately, though, by expanding the scope of domestic surveillance, the likely outcome is less security, not more. With so much electronic noise in the air, trying to keep tabs on everyone’s communications would serve only to dilute efforts to deter terrorists. If, on the other hand, we were to protect individual liberty by requiring some degree of scrutiny over the executive branch, our intelligence agencies would be more likely to focus their efforts on actual threats to our safety.
Giving up essential liberty for a little security is a Faustian bargain. It is not necessary. It will not deliver the expected results. It should be rejected.
