Bloggerly Overreach

Radley Balko, writing at Cato@Liberty, applauds Pejman Yousefzadeh’s piece at TCS Daily, “Legal Overkill.” Balko highlights the phrase “mistakes of lawyerly overreach,” as if Yousefzadeh were supportive of Balko’s rather hysterical fear that the Fourth Reich is upon us. All Yousefzadeh does is point out that

[t]hese efforts at overreach are being made in order to enhance the power of the Executive Branch, power that Bush Administration lawyers — not without reason — believe has been circumscribed over recent decades. But in making untenable claims in favor of the broadening of executive power, the Bush Administration lawyers are not only setting themselves up for failure regarding the specific claims involved, they are also setting up the Executive Branch to have its power circumscribed anew; exactly the opposite approach that is intended.

Yousefzadeh’s counsel is a matter of tactical disagreement, not strategic dissent. He homes in on the treatment of enemy combatants, concluding that

[i]f the Administration relied on the traditional laws of war as . . . codified by the Geneva Conventions it could have achieved its purpose of writing a legal justification for treating Taliban combatants — and for that matter, irregular Iraqi insurgents — differently from traditional POWs.

Nor should Balko and his ilk take comfort in Yousefzadeh’s bottom line:

There are a great many good-faith reasons to fear that the power of the Executive Branch has been unnecessarily diluted in recent years. But as a result of the Bush Administration’s overreach, those who seek to expand the powers of the Presidency may inadvertently end up helping to dilute it.

Well, Balko et al. might take comfort in the possibility of ham-stringing the commander-in-chief, given their apparent aversion to the actual defense of liberty. It is that defense, and not their puerile posturing, which enables them to indulge their suicidal devotion to the non-agression principle.

Cell Phones and Driving: Liberty vs. Life

For more evidence of the link between cell-phone use and highway fatalities, see also this post.

UPDATED TWICE, BELOW

(My sentiments, exactly.)

And cell-phone users do die . . . but they take others with them:

Study: Distractions Cause Most Car Crashes

By KEN THOMAS, Associated Press Writer

BLACKSBURG, Va. – Those sleep-deprived, multitasking drivers — clutching cell phones, fiddling with their radios or applying lipstick — apparently are involved in an awful lot of crashes.

Distracted drivers were involved in nearly eight out of 10 collisions or near-crashes, says a study released Thursday by the government. . . .

“We see people on the roadways talking on the phone, checking their stocks, checking scores, fussing with their MP3 players, reading e-mails, all while driving 40, 50, 60, 70 miles per hour and sometimes even faster,” said Jacqueline Glassman, acting administrator of the government’s highway safety agency.

A driver’s reaching for a moving object increased the risk of a crash or potential collision by nine times, according to researchers at the National Highway Traffic Safety Administration and the Virginia Tech Transportation Institute.

They found that the risk of a crash increases almost threefold when a driver is dialing a cell phone. . . .[Emphasis added.]

Researchers said the report showed the first links between crash risks and a driver’s activities, from eating and talking to receiving e-mail.

“All of these activities are much more dangerous than we thought before,” said Dr. Charlie Klauer, a senior research associate at the institute. Data from police reports had estimated that driver inattention was a factor in about 25 percent of crashes.

Some safety organizations said the study was part of a growing body of research and worried it might lead to reactionary laws.

“I urge legislators not to interpret these results as a need for new legislative initiatives. It is simply not good public policy to pass laws addressing every type of driver behavior,” said Lt. Col. Jim Champagne, chairman of the Governors Highway Safety Association. . . . [Why not? Pray tell.]

Assessing cell phone use, the researchers said the number of crashes or near-crashes linked to dialing the phones was nearly identical to those tied to talking or listening on the phone.

Connecticut, New York, New Jersey and the District of Columbia have laws that prohibit people from talking on handheld cell phones while driving.

A government report last year found that about 10 percent of drivers are using cell phones. . . .

Also Thursday, a preliminary report from the safety agency said the highway death rate rose slightly in 2005 after falling for two years. The government said 43,200 people died on the road, compared with 42,636 in 2004.

A question for hard-core libertarians: Should there be strictly enforced laws (with harsh penalties) against talking on a cell phone while driving? I say “yes.” If you disagree, tell me why. And don’t waste words on a diatribe against the existence of the state. Start with reality, and take it from there.

UPDATE (5:10 pm): The Gonzman offers some good points:

[T]he laws of consequence should apply. I’m against seat belt laws, but for insurance companies declining to pay for your injuries if you refuse to wear one, per their contract with you. Same thing with motorcycle helmets.

Cell Phones? The consequences are predictable. And cell phone LUDS are easy to check. So, if you have an accident while talking on one, it should be a rebuttable presumption the accident is your fault, and further, if injury or death results, you should be subject to criminal charges.

I used to regard it as similar to drunk driving, but there is a distinction that my thinking has led me to over the years. A drunk is always impaired; someone talking on a cell phone, or eating lunch, or changing the radio, or lighting a cigarette is merely distracted to a lesser or greater degree, depending on traffic and/or road conditions. There are ways to do these responsibly. . . .

Here’s my reaction:

If cell-phone use is potentially as dangerous as drunk driving, why shouldn’t a cop pull over a person he sees holding a cell phone to her ear (or reading a paper or doing her nails), just as he would (and should) pull over a person whose driving suggests drunkenness? That is, why not try to prevent the preventable when the opportunity arises? If the cops are going to be out there anyway (and it’s probably a good thing that they are), they might as well do something preventive if they can.

I don’t mean that cops should pull over drivers for failing to wear seatbelts or motorcycle helmets. The failure to wear a seatbelt or helmet doesn’t have murderous externalities, unlike talking on a cell-phone or driving drunk.

I like the Gonzman’s point about deterrence, but I wouldn’t rely solely on it in cases where there are potentially murderous externalities. Let it be known that phone records will be checked and criminal charges will be filed if the driver was on a cell phone at the time of an accident. Let insurance companies write policies that do not cover the life, limb, and property of the person at fault. Such measures might deter a lot of yakkety-yak. But that’s no reason not to haul drivers over when they insist on hands-on yakking while driving.

So, I would go for a combination of deterrence and preventive enforcement. But — again — I would apply preventive enforcement only where a police officer sees behavior that potentially risks the lives of other persons, as in the cases of drunk driving and having a hands-on cell-phone conversation.

We may be hearing more from the Gonzman. Stay tuned.

UPDATE 2 (6:20 pm):

I am not buying in to the nanny-state mentality that bans smoking in privately owned establishments, such as bars and clubs, for the ostensible purpose of preventing death and disease. The main excuse for such bans (the main reason is anti-smoking prudery) is that smoking endangers the health of non-smokers as well as smokers. Pardon me, but the last time I looked there were places other than bars where one could drink or hold down a job. No one is forcing non-smokers to socialize and work at places where smoking is allowed.

But for the vast majority of drivers there is no alternative to the use of public streets and highways. Relatively few persons can afford private jets and helicopters for commuting and shopping. And as far as I know there are no private, drunk-drivers-and-cell-phones-banned highways. Yes, there might be a market for those drunk-drivers-and-cell-phones-banned highways, but that’s not the reality of here-and-now.

So, I can avoid the (remote) risk of death by second-hand smoke by avoiding places where people smoke. But I cannot avoid the (less-than-remote) risk of death at the hands of a drunk or cell-phone yakker. Therefore, I say, arrest the drunks, cell-phone users, nail-polishers, newspaper-readers, and others of their ilk on sight; slap them with heavy fines; add jail terms for repeat offenders; and penalize them even more harshly if they take life, cause injury, or inflict property damage.

A Footnote about "Eavesdropping"

My rather long post about “Privacy: Variations on the Theme of Liberty” includes a reading list that I update from time to time. Here’s the current version:

President had legal authority to OK taps (Chicago Tribune)
Our domestic intelligence crisis (Richard A. Posner)
Many posts by Tom Smith of The Right Coast (start with “Thank You New York Times” on 12/16/05 and work your way to the present)
Eavesdropping Ins and Outs (Mark R. Levin, writing at National Review Online)
The FISA Act And The Definition Of ‘US Persons’ (Ed Morrissey of Captain’s Quarters)
A Colloquy with the Times (John Hinderaker of Power Line)
September 10 America (editorial at National Review Online)
A Patriot Acts (Ben Stein, writing at The American Spectator)
More on the NSA Wiretaps (Dale Franks of QandO)
The President’s War Power Includes Surveillance (John Eastman, writing at The Remedy)
Warrantless Intelligence Gathering, Redux (UPDATED) (Jeff Goldstein, writing at Protein Wisdom)
FISA Court Obstructionism Since 9/11 (Ed Morrissey of Captain’s Quarters)
FISA vs. the Constitution (Robert F. Turner, writing at OpinionJournal)
Wisdom in Wiretaps (an editorial from OpinionJournal)
Under Clinton, NY Times Called Surveillance a Necessity (William Tate, writing at The American Thinker)
LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE
NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT (U.S. Department of Justice)
Terrorists on Tap (Victoria Toensing, writing at OpinionJournal)
Letter from Chairman, Senate Intelligence Committee, to Chairman and Ranking Member of Senate Judiciary Committee
Letter from H. Bryan Cunningham to Chairman and Ranking Member of Senate Judiciary Committee
Has The New York Times Violated the Espionage Act? (article in Commentary by Gabriel Schoenfeld)
Point of No Return (Thomas Sowell, writing at RealClearPolitics)
Letter from John C. Eastman to Chairman of House Judiciary Committee
FISA Chief Judge Speaks Out, Bamford Misinforms (a post at The Strata-Sphere)
DoJ Responds to Congressional FISA Questions (another post at The Strata-Sphere)

To that list I now add two posts at Power Line, in which John Hinderaker and Scott Johnson assess the testimony of five former judges of the Federal Intelligence Surveillance Court who testified recently before the Senate Judiciary Committee. From the transcript (as quoted in Hinderaker’s post):

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President’s constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

The president’s inherent constitutional authority includes the use of surveillance against foreign nationals — even if a U.S. citizen in the U.S. happens to be on the other end of the phone line or e-mail exchange. That point is reinforced by this passage from Johnson’s post:

Senator Hatch . . . pursued a series of hypothetical questions that he posed to Judge Kornblum regarding the admissibility in criminal trials of evidence obtained indirectly from the NSA surveillance program:

Judge Kornblum: To be admissible, the evidence would have had to have been lawfully seized or lawfully obtained and the standard that the district judge would use is that, depending upon where this is, is the law in his circuit. In most of the circuits, the law is clear that the President has the authority to do warrantless surveillance if it is to collect foreign intelligence and it is targeting foreign powers or agents. If the facts support that, then the district judge could make that finding and admit the evidence, just as they did in Truong-Humphrey.

(Emphasis added.) Judge Kornblum’s reference to Truong-Humphrey is to the federal appellate cases that acknowledge[s] [a] president’s inherent authority to order warrantless foreign intelligence surveillance, previously discussed by John here.

So, let’s knock off this nonsense about “illegal wiretaps” and get on with finding the bad guys. Actually, I’m sure that’s precisely what Bush and company are trying to do, in spite of the ankle-biters in the media and Congress.

Well Said . . .

. . . by Jon Henke at QandO:

I can accept a constitutional right to privacy, but if it only extends to abortion, then it’s not a right to privacy at all. It’s a right to abortion. The two are not the same.

Of course, abortion isn’t about privacy at all. It’s about convenience.

Apropos Academic Freedom and Western Values

My recent post about “Lefty Profs” sparked a post by Joe Miller at Bellum et Mores. There, Joe has penned “A Defense of the Loony Left“), which is really a witty defense of academic freedom, not of the loony left.

This post adds to what I have said in “Lefty Profs” and “A Politically Incorrect Democrat” (which is about Larry Summers’s decision to step down as president of Harvard). An unspoken but very real motivation for those posts is the danger that the so-called loony left poses to the very freedoms we enjoy because of Western culture. Apropos that theme, Keith Windschuttle has posted a long essay at thesydneyline entitled “The Adversary Culture: The perverse anti-Westernism of the cultural elite.” Along the way, Winschuttle observes:

Cultural relativism claims there are no absolute standards for assessing human culture. Hence all cultures should be regarded as equal, though different. It comes in two varieties: soft and hard.

The soft version now prevails in aesthetics. Take a university course in literary criticism or art theory and you will now find traditional standards no longer apply. Italian opera can no longer be regarded as superior to Chinese opera. The theatre of Shakespeare was not better than that of Kabuki, only different.

The hard version comes from the social sciences and from cultural studies. Cultural practices from which most Westerners instinctively shrink are now accorded their own integrity, lest the culture that produced them be demeaned.

There are absolute standards for assessing human culture. Here’s mine: A culture that respects life, fosters liberty, and protects the pursuit of happiness will — among other things — yield economic well-being greater than that of a culture which does not repect life, foster liberty, or protect the pursuit of happiness.

Windschuttle concludes:

The concepts of free enquiry and free expression and the right to criticise entrenched beliefs are things we take so much for granted they are almost part of the air we breathe. We need to recognise them as distinctly Western phenomena. They were never produced by Confucian or Hindu culture. Under Islam, the idea of objective inquiry had a brief life in the fourteenth century but was never heard of again. In the twentieth century, the first thing that every single communist government in the world did was suppress it.

But without this concept, the world would not be as it is today. There would have been no Copernicus, Galileo, Newton or Darwin. All of these thinkers profoundly offended the conventional wisdom of their day, and at great personal risk, in some cases to their lives but in all cases to their reputations and careers. But because they inherited a culture that valued free inquiry and free expression, it gave them the strength to continue.

Today, we live in an age of barbarism and decadence. There are barbarians outside the walls who want to destroy us and there is a decadent culture within. We are only getting what we deserve. The relentless critique of the West which has engaged our academic left and cultural elite since the 1960s has emboldened our adversaries and at the same time sapped our will to resist.

The consequences of this adversary culture are all around us. The way to oppose it, however, is less clear. The survival of the Western principles of free inquiry and free expression now depend entirely on whether we have the intelligence to understand their true value and the will to face down their enemies.

My counsel isn’t to round up the loony left and ship it off to Afghanistan, salutary as that might be for the loony left and the rest of us. No, my counsel is that those of us who value the best of Western culture must vigilantly defend it against the depradations of the loony left. That is why I speak out.

(Thanks to Political Correctness Watch for the link to Windschuttle’s essay.)

Lefty Profs

Orin Kerr’s post about “Radicals in Higher Education” at The Volokh Conspiracy has drawn 138 comments (and still counting). Here’s the post:

Last week, Sean Hannity expressed the following concern on Hannity & Colmes:

Kids are indoctrinated. They’re a captive audience. What can be done to remove these professors with these radical ideas from campus?

Michael Berube responds here.

Professor Bérubé also responds with a comment, in which he replies to some of the early comments and offers a link to his lengthy defense of academic freedom. (Which I may bother to eviscerate someday.) But the real issue isn’t academic freedom, it’s the one-sided political tilt that prevails in the academy.

My own comment:

Professor Bérubé protests too much. I have no time for Sean Hannity, but the essence (if not the tone) of Hannity’s question deserves a thoughtful reply. The usual appeal to academic freedom is no more than an effort to deflect attention from the intellectual bankruptcy of leftist academic cant. I have not noticed that Americans are better off for having been subjected to such cant. It took me a few decades to outgrow my own “indoctrination” at the hands of the mostly left-leaning faculty at a State-supported university. And I suspect that my alma mater was far less to the left when I went there in the Dark Ages of the late 1950s and early 1960s than it is today. As for the bias evident in Professor Bérubé’s own port-side emissions, I had this to say a while back about a piece Bérubé wrote for The Nation:

Michael Bérubé [is] a professional academic who is evidently bereft of experience in the real world. His qualifications for writing about affirmative action? He teaches undergraduate courses in American and African-American literature, and graduate courses in literature and cultural studies. He is also co-director of the Disability Studies Program, housed in the Rock Ethics Institute at Penn State.

Writing from the ivory tower for the like-minded readers of The Nation (“And Justice for All“), Bérubé waxes enthusiastic about the benefits of affirmative action, which — to his mind — “is a matter of distributive justice.” Bérubé, in other words, subscribes to “the doctrine that a decision is just or right if all parties receive what they need or deserve.” Who should decide what we need or deserve? Why, unqualified academics like Bérubé, of course. Fie on economic freedom! Fie on academic excellence! If Bérubé and his ilk think that a certain class of people deserve special treatment, regardless of their qualifications as workers or students, far be it from the mere consumers of the goods and services of those present and future workers to object. Let consumers eat inferior cake.

Bérubé opines that “advocates of affirmative action have three arguments at their disposal.” One of those arguments is that

diversity in the classroom or the workplace is not only a positive good in itself but conducive to greater social goods (a more capable global workforce and a more cosmopolitan environment in which people engage with others of different backgrounds and beliefs).

Perhaps Bérubé knows the meaning of “capable global workforce.” If he does, he might have shared it with his readers. As for a workplace that offers a “cosmopolitan environment” and engagement “with others of different backgrounds and beliefs” I say: where’s the beef? As a consumer, I want value for my money. What in the hell does diversity — as defined by Bérubé — have to do with delivering value? Perhaps that’s one reason U.S. jobs are outsourced. (I have nothing against that, but it shouldn’t happen because of inefficiency brought about by affirmative action.) Those who seek a cosmopolitan environment and engagement with others of different backgrounds and beliefs can have all of it they want — on their own time — just by hanging out in the right (or wrong) places.

Alhough Bérubé seems blind to the economic cost of affirmative action, he is willing to admit that the practice has some shortcomings:

Affirmative action in college admissions has been problematic, sometimes rewarding well-to-do immigrants over poor African-American applicants–except that all the other alternatives, like offering admission to the top 10 or 20 percent of high school graduates in a state, seem to be even worse, admitting badly underprepared kids from the top tiers of impoverished urban and rural schools while keeping out talented students who don’t make their school’s talented tenth. In the workplace, affirmative action has been checkered by fraud and confounded by the indeterminacy of racial identities–and yet it’s so popular as to constitute business as usual for American big business, as evidenced by the sixty-eight Fortune 500 corporations, twenty-nine former high-ranking military leaders and twenty-eight broadcast media companies and organizations that filed amicus briefs in support of the University of Michigan’s affirmative action programs in the recent Supreme Court cases of Gratz v. Bollinger and Grutter v. Bollinger (2003).

Stop right there, professor. Affirmative action is “popular” because it’s the law and it’s also a politically correct position that boards of directors, senior corporate managers, and government officials, and military leaders can take at no obvious cost to themselves. Further, those so-called leaders are sheltered from the adverse consequences of affirmative action on the profitability and effectiveness of their institutions by imperfect competition in the private sector and bureaucratic imperatives in the government sector.

As I wrote in “Race, Intelligence, and Affirmative Action,” here’s how affirmative action really operates in the workplace:

If a black person seems to have something like the minimum qualifications for a job, and if the black person’s work record and interviews aren’t off-putting, the black person is likely to be hired or promoted ahead of equally or better-qualified whites. Why?

* Pressure from government affirmative-action offices, which focus on percentages of minorities hired and promoted, not on the qualifications of applicants for hiring and promotion.

* The ability of those affirmative-action offices to put government agencies and private employers through the pain and expense of extensive audits, backed by the threat of adverse reports to higher ups (in the case of government agencies) and fines and the loss of contracts (in the case of private employers).

* The ever-present threat of complaints to the EEOC (or its local counterpart) by rejected minority candidates for hiring and promotion. Those complaints can then be followed by costly litigation, settlements, and court judgments.

* Boards of directors and senior managers who (a) fear the adverse publicity that can accompany employment-related litigation and (b) push for special treatment of minorities because they think it’s “the right thing to do.”

* Managers down the line learn to go along and practice just enough reverse discrimination to keep affirmative-action offices and upper management happy.

I reject Bérubé’s counsel about academic freedom as utterly as I reject his counsel about affirmative action. Academic freedom seems to be fine for leftists as long as they hold the academy in thrall. More parents would send their children to schools that aren’t dominated by leftists if (a) there were enough such schools and (b) the parents could afford to do so. But the left’s grip on the academy seems to be as secure as the grip of the labor unions on the American auto industry — and you can see what has happened to the auto industry as a result.

As I wrote here,

The larger marketplace of ideas counteracts much of what comes out of universities — in particular the idiocy that emanates from the so-called liberal arts and social sciences. But that’s no reason to continue wasting taxpayers’ money on ethnic studies, gender studies, and other such claptrap. State legislatures can and should tell State-funded universities to spend less on liberal arts and social sciences and spend more on the teaching of real knowledge: math, physics, chemistry, engineering, and the like. That strikes me as a reasonable and defensible stance.

It isn’t necessary for State legislatures to attack particular individuals who profess left-wing blather. All the legislatures have to do is insist that State-funded schools spend taxpayers’ money wisely, by focusing on those disciplines that advance the sum of human knowledge. Isn’t that what universities are supposed to do?

For another view, let us consult Katherine Ernst’s City Journal review of David Horowitz’s The Professors: The 101 Most Dangerous Academics in America. Some choice bits:

The Professors profiles scores of unrepentant Marxists, terrorist-sympathizers (the number of profs expressing utter hatred for the US and Israel is astounding), and the just plain nutty working in today’s American academe. . . . The hostility to the free society, venomous racism—it’s open season on whites and Jews, apparently—and total disregard for objectivity of these far-left-wing ideologues add up to a travesty of the idea of higher education.

These academics—whose radicalism is widespread in today’s university—are “dangerous” not because they hold such beliefs, Horowitz argues, but because they replace scholarship and the transmission of knowledge with classroom activism and the ideological subjugation of paying students. . . . Horowitz is clear: everyone “has a perspective and therefore a bias.” Academics, however, have an obligation “not to impose their biases on students as though they were scientific facts.” Academe’s left-wing establishment—which first conquered its turf during the sixties countercultural movement—is so sure of its intellectual supremacy over conservative dolts and their military-industrial-complex buddies in the White House and corporate America, that it believes it’s obligated to spread the left-wing gospel to unsuspecting students. They need to save the world from the war-mongering criminal class running the country, after all!

Stories of indoctrination run through the book, from the education instructor who required her students to screen Fahrenheit 9/11 a week before the 2004 presidential election, to the criminology professor whose final exam asked students to “Make the case that George Bush is a war criminal.” (The prof later claimed the request was to “Make the argument that the military action of the U.S. attacking Iraq was criminal,” but he had conveniently destroyed all his copies of the original exam.) Once again, the academics’ own words do the loudest talking. Saint Xavier University’s Peter Kirstein: “Teaching is . . . NOT a dispassionate, neutral pursuit of the ‘truth.’ It is advocacy and interpretation.” . . .

Faux-intellectual academic fields like “Peace Studies” are now the latest fad gobbling up university capital. Basically, they’re advocacy platforms for college credit. “Why, if the Joneses want to spend $40,000 for Bobby to study ‘Marxist Perspectives on Fema-Chicana Lit,’ by all means, let them,” some might respond. Yet as The Professors warns, the craziness has inexorably spread to fields that once held sacrosanct the pursuit of objective knowledge. Members of Horowitz’s 101 teach economics, history, and English Literature, among other standard subjects.

Many of The Professors’ profiles offer outrages matching those of Ward Churchill, the infamous 9/11-victims-were-Nazis prof. The lunacy that was Professor Churchill, it’s worth remembering, enjoyed adoration for decades within academe until the public caught on. It may be wishful thinking, but if Horowitz’s book reaches enough hands, there could be some long-overdue collegiate shake-ups this year.

Let us hope so. “Academic freedom” is not a license to waste the money of taxpayers, parents, and students on propagandizing. Academics — like politicians — aren’t owed a living, in spite of their apparent belief to the contrary. It isn’t a violation of “academic freedom” or freedom of speech to say “The junk you teach is worthless, and besides that you don’t teach, you preach. Begone!”

Related posts: Academic Freedom and Freedom of Speech (a collection of links)

A Politically Incorrect Democrat

UPDATE: Read this relevant post at The American Thinker, and this one at RedState.org.

Larry Summers, late of the Clinton administration, will relinquish the presidency of Harvard in the face of a pending (and second) vote of no-confidence by his faculty. Why?

Mr Summers’s brusque manner and characteristically aggressive form of questioning had turned some on the faculty against him. Resentment built into a furore last year when the president – a Harvard-trained economist – gave a speech suggesting that “issues of intrinsic aptitude” might be responsible for the dearth of women in science and engineering positions at top universities.

His comments angered some faculty members, culminating in a vote of no confidence in his leadership last March, which was passed by a 218-185 margin….

Harvey Mansfield, a professor of government at Harvard, said he thought the attacks on Mr Summers had their root in political differences. “My worry is that the feminist left and its sympathisers will take over Harvard, and I fear that the university will fall under the influence of a minority,” he said.

Tsk. Tsk. Musn’t have any “aggressive” questioning of faculty, eh? (That would be a breach of current academic etiquette. The faculty is god-like and not to be challenged in its superior knowledge of how things should be.) Mustn’t say politically incorrect things, eh? (That would be another breach of current academic etiquette, in which certain subjects are beyond debate — beyond “academic freedom” — lest certain parties take offense.)

Presumably, Prof. Mansfield has tenure, and a very thick skin.

European Hypocrisy

A statement and question from Alex Tabarrok at Marginal Revolution:

David Irving, the British historian, was sentenced in Austria today to three years in jail for denying the holocaust in two speeches he gave in 1989. I have little sympathy for Irving but support the right to free speech. How can we in the West take a principled stand against radical Muslims who riot and kill to protest depictions of Muhammad when we jail those who attack our sacred beliefs?

“We” in America are not responsible for the actions of our European “allies.” It is evident (not only from the Irving case) that most of Europe (especially “Old Europe”) wants to defend life, but not liberty and property.

A Rant about Torture

Verity at Southern Appeal asks:

I’d love to know where the SA contributors and yellers stand on torture. How many believe that torture is never permissible?

One of her co-bloggers responds:

Torture is never morally permissible.

To which I said:

Think about the implications of what you are saying when you say that “torture is never morally permissible.” If “torture is never morally permissible” one would never torture a terrorist in order to save a city or a kidnapper in order to save a child who has been buried in a container with a limited amount of oxygen — to take but two relevant examples. By the way, torture can work — contrary to the protestations of the anti-torture crowd. How? You get the subject to cough up the information you’re seeking, and you tell him that if the information is incorrect he ain’t seen nothin’ yet. And you can make it proportional, for example, a family for a family unless the information is correct. Of course, I’m talking about situations in which it’s quite clear that the torturee has or can lead you to the information you seek. If that’s not the case, you’re just wasting your time. Cold-blooded. You bet. This isn’t a game of tiddly-winks, it’s a fight to the finish. I think it’s immoral not to save innocent lives. That’s what’s not morally permissible.

For more about the “fight to the finish,” read this.

P.S. Anyone who thinks that abstaining from torture will make the bad guys any less bad hasn’t been paying attention:

September 11, 2001

* * *

Women take the body of their relative killed in a school seizure, in a makeshift morgue in Vladikavkaz, North Ossetia, Saturday, Sept. 4, 2004. The bodies were brought to Vladikavkaz for identification. More than 340 people were killed in a southern Russian school that had been seized by militants, a prosecutor said Saturday. (AP Photo/Sergey Ponomarev)

* * *

Pair of Car Bombs in Iraq Kill Dozens, Including Many Children

By DEXTER FILKINS

Published: September 30, 2004

BAGHDAD, Iraq, Sept. 30 — In one of the most horrific attacks here since the fall of Saddam Hussein, a pair of car bombs tore through a street celebration today at the opening of a new government-built sewer plant, killing 41 Iraqi civilians, at least 34 of them children, and wounding 139 people.

The bombs exploded seconds apart, creating a chaotic scene of dying children and grieving parents, some of them holding up the blood-soaked clothes of their young, and howling in lament. Arms and legs lay amid pools of blood, with some survivors pointing to the walls of the sewer plant, now spattered with flesh….

* * *

ABC News Online
Wednesday, November 3, 2004. 1:50am (AEDT)

Zarqawi group releases beheading video of Japanese hostage

A group led by Al Qaeda-ally Abu Musab al-Zarqawi has showed the beheading of Japanese hostage Shosei Koda in Iraq while he was lying on top of a US flag in an Internet video.

* * *

Two wrongs don’t make a right. But the use of torture in an effort to prevent such acts is right. What’s wrong is a deliberate failure to prevent such acts because of a squeamishness about torture. Torture in such circumstances is a defensive act, not an aggressive or punitive one.

Words for the Unwise

Those who are trying to dismantle our defenses should read this:

Reliapundit links to a report which he says can be considered circumstantial proof that the NY Times, in leaking the NSA wiretapping program, has tipped off terrorists and thus made our job more difficult. Seems disposable phones are selling like hotcakes in certain quarters. They’re tough to trace. . . .

Maybe some Americans forget what 9/11 was like. It’s easy to do; we don’t like to dwell on what is sad and tragic, and we don’t like to feel insecure. And perhaps because our president and his team HAVE managed to keep us safe, HAVE managed to prevent another attack on our soil, using these (what the left would call) “impeachable” tactics, perhaps we are feeling a little too safe, a little over-confident. That must be true for some, particularly many Democrats, who would like to “kill the Patriot act,” as Sen. Harry Reid crowed, or leak every covert measure we are taking, (hello, New York Times, hello James Risen) or who seem to wish to tie the hands of the government at every turn in the War on Terror.

Feeling pretty safe, are you? Pretty secure? Has 9/11 become a faded memory for you?

I haven’t forgotten. . . .

I remember Tom Brokaw’s voice as the endless loop of a plane slamming into a tower played, “This,” he intoned, gravely, “is war.” . . .

I remember knowing, four years ago, that terrorists were evil and that terrorism needed defeating. I thought we all knew it.

I’m a New Yorker, and if it happens again in New York, I will hold these “pure, patriotically motivated” leakers (yes, they’re leakers) responsible, because they allowed their hate to take them too far.

I will wonder how Harry Reid and the NY Times and the leakers and “anonymous sources” they have lionized can live with all the blood on their hands, even as they (predictably) immediately blame the White House for not “connecting the dots.”

If it happens anywhere in America, (or, really, anywhere else) I will look toward the NY Times and the rest of the “pure, patriotically motivated” press and leftists, because they will have, by their actions and their rhetoric, enabled terrorists to move forward where they had perhaps formerly been stalled. By making the job of surveillance and information-sharing more difficult (drop the Patriot Act and Jamie Gorelick’s wall snaps back in place) and the terrorist’s job easier, they will have participated in something deadly – all because they wanted to “get” the president and keep him from succeeding – which means keep America from succeeding – which means keep the world from progressing away from the scourge of terrorism.

If it happens again, if after we’ve been safe for nearly 5 years only to find – after these “noble” leaks – that we are safe no longer, I will know where to look. Most Americans will know where to look.

I know right where to look.

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
The Illogic of Knee-Jerk Privacy Adocates (10/06/04)
Treasonous Blogging? (03/05/05)
Absolutism (03/25/05)
Shall We All Hang Separately? (08/13/05)
Foxhole Rats (08/14/05)
Treasonous Speech? (08/18/05)
Foxhole Rats, Redux (08/22/05)
September 11: A Remembrance (09/11/05)
The Faces of Appeasement (11/19/05)
Give Me Liberty or Give Me Non-Aggression? (12/08/05)
We Have Met the Enemy . . . (12/13/05)
Whose Liberties Are We Fighting For? (12/16/05)
Prof. Bainbridge and the War on Terror (12/17/05)
The Constitution and Warrantless “Eavesdropping” (12/21/05)
NSA “Eavesdropping”: The Last Word (from Me) (12/28/05)
Privacy, Security, and Electronic Surveillance (01/06/06)
Privacy: Variations on the Theme of Liberty (01/11/06)
Worth Repeating (01/13/06)

Privacy: Variations on the Theme of Liberty

This post is an abridgement of the much longer version at Liberty Corner II. The complete version provides much supporting detail that I have omitted here.

I begin by addressing privacy as a right. I then turn to private-sector issues, namely, identity theft and the use of personal information by businesses. In the next substantive portion of this post I address privacy vis-a-vis government, disposing quickly of the national ID card to focus on warrantless “eavesdropping” and data-mining. I then offer a brief summary and conclusion.

IS PRIVACY AN ABSOLUTE RIGHT?

Privacy in the Law

Privacy is one among many values that liberty should serve. An individual’s desire for privacy is as legitimate as a desire for, say, a Lamborghini, a full head of hair, and perpetual youth. Seriously, privacy is a legitimate pursuit, yet (like a Lamborghini) it cannot an absolute right. For — as I have argued elsewhere — if privacy were an absolute right, it would be possible to get away with murder in one’s home simply by committing murder there. In fact, if there are any absolute rights, privacy certainly isn’t one of them. Privacy really is a bargain that individuals strike with the rest of the world. We cannot act in the world without ceding some privacy, so the question is how to decide when the bargain we are being asked to strike is a good one or a bad one, given the benefits and risks of ceding some privacy.

You may now ask: “What about the Constitution, the Bill of Rights, and all of that?” Read the Constitution and Bill of Rights and you will find that there is nothing about privacy in them. The Fourth and Fifth Amendments come closest to being “privacy” amendments, but they’re really about due process of law. The vaunted Ninth Amendment doesn’t protect an unemurated privacy right.

There is neverthess a notion that the Fourteenth Amendment guarantees privacy as a matter of substantive due process. As I have explained, however, substantive due process protects constitutionally guaranteed rights (e.g., liberty of contract). It does not protect imaginary rights, such as the non-existent general right to privacy.

The notion of a general right to privacy is a fairly recent invention of the Supreme Court. It was conjured to serve the Court’s legislative agenda in Griswold v. Connecticut (overturning a Connecticut law that banned the sale of contraceptives) and Roe v. Wade (overturning a Texas anti-abortion law).

There are, of course, federal and State laws that define specific areas of privacy. All such federal and State laws are carve-outs — delineations of specific areas of privacy. They are not general guarantees of privacy. Do we need even more carve-outs to deal with the “privacy crisis”? Let us begin by defining the real privacy problem.

Privacy in the Real World

You may, in spite of what I have just said, think that you have a “right” to privacy. But try that line with prospective creditors, who have a “right” to know enough about you to decide whether to extend credit to you; try that line with banks, which have a “right” to know enough about you so that they can safeguard your savings from impostors; and try that line with the police, who have a “right” (constitutionally) to obtain a warrant to search your home if you are suspected of a crime.

If you want absolute privacy you should not have a job (working for someone else), a credit card, a checking account, a brokerage account, a 401(k), a house, land, a car, a legalized marriage, children who were born in a hospital or educated formally, a formal education of your own, a telephone, an Internet connection, or almost any of the other trappings of what we call civilization. The real issue is the extent to which you are willing to forgo some aspects of privacy in order to work for someone else (other than the Mob), possess a credit card, etc.

PRIVACY ISSUES IN THE PRIVATE SECTOR

Dealing With “Identity Theft”

Let’s be clear about what is being stolen in “identity theft.” An identity thief’s real crime isn’t stealing a person’s identity, it’s using information about that person to steal from that person and/or to steal from others. With that understood, the solution to “identity theft” is straightforward: Fraud is fraud and theft is theft, and they ought to be prosecuted as such.

Moreover, businesses that abet “identity theft” through lax verification and security procedures should be held accountable for their misfeasance.

On to the tougher issue of how to cope with banks, lenders, vendors, and the like.

A Market Solution for Other Private-Sector Issues

So, beyond the obvious penalties for “identity theft” and for misfeasance on the part of businesses that hold personal information, the answer to the private-sector privacy quandary lies . . . in the private sector. The answer, specifically, is the use of what I will call “privacy brokers.” These would be companies that are qualified to explain to an individual his privacy options, and authorized to exercise the individual’s preferences on his behalf. Such firms would be fully knowledgeable of applicable laws and the ins-and-outs of the privacy policies of companies with which an individual might do business. (Bear with me as I explain why I’m not inventing a new and costly middleman.)

How would privacy brokers be paid? If they were paid by businesses, consumers rightly wouldn’t trust them. But how likely is it that consumers will shell out what looks like additional money for a service that, to most consumers, might seem unnecessary? After, in spite of all the personal information that’s afloat in the databases of businesses, credit-card issuers, and credit-rating agencies, relatively few consumers have been defrauded or otherwise compromised.

The answer, of course, is that consumers already are paying for the services of credit-rating agencies through the prices charged by businesses and the interest charged by credit-card issuers. It would be relatively easy for credit-rating agencies to transform themselves into privacy brokers. Privacy brokers would collect all of the information now required by creditors, but they would collect it as consumers’ agents, after duly informing consumers of their options and the risks and benefits of those options. Each consumer would agree to compensate his privacy broker by assigning a share of his credit purchases to the broker. Conveniently enough, the consumer’s creditors would no longer be paying the former credit-rating agency (now a privacy broker) a share of the consumer’s credit purchases for the same information. Thus the consumer would not see any increase in prices or interest charges.

Privacy brokers would compete on the basis of price, service, and reputation. If a privacy broker were to allow its data to be compromised, it would quickly lose customers to existing competitors and new entrants to the privacy-brokerage business. Moreover, privacy brokers — each with tens of millions of clients — would have considerable leverage over businesses’ privacy policies. As a selling point, privacy brokers could use that leverage on the behalf of their clients. Privacy brokers could, for example, negotiate reductions in the amount of personal information that is kept on consumers, ensure that consumers never have to opt-out when it comes to third-party use of personal information, and (most importantly) extract enforceable guarantees about the security of personal information. Those kinds of pro-consumer activities would be fostered by competition among privacy brokers.

PRIVACY VIS-A-VIS GOVERNMENT

Is a National ID Card a Good Idea?

A well-designed ID card might prevent some kinds of “identity theft” if the identifying information embedded in the card could be read only by secure machines and would not be accessible to opportunistic thieves (e.g., unskilled restaurant and department-store employees).

But well-heeled terrorist organizations would find ways to create seemingly legitimate ID cards for their members. And there’s the rub. Possession of a single piece of ID, one that is presumed to be authoritative, would make it easier for terrorists to gain access to vulnerable sites (e.g., passenger aircraft) and to elude investigation by deflecting suspicion.

Uncle Sam already knows (or can know) everything about me. A national ID card wouldn’t make a difference in that respect. But it would make it easier for terrorists to terrorize. The card is therefore a bad idea.

Privacy or Liberty?

It is sometimes necessary for government to intrude on privacy for the sake of liberty. If, for example, the punishment of crime fosters the security of life, limb, and property by deterring yet more crime, then liberty is served by certain types of governmental intrusion on privacy (e.g., searches of private property, questioning of suspects and witnesses, and compulsion of testimony in criminal cases).

Similarly, the defense of the United States (which includes the defense of Americans and American interests abroad), may justify governmental intrusions on privacy. But there must be restraints on governmental intrusion to ensure that no instance of intrusion is broader than required for the accomplishment of a legitimate governmental function. From a libertarian perspective, that rules out any governmental intrusion of privacy which isn’t aimed at promoting justice or defending citizens and their property.

Thus, for example, government is improperly intrusive when it issues a census questionnaire that asks for more information than is necesary to enumerate the population. By contrast, government is properly vigilant when it engages in clandestine surveillance that is warranted by a known threat to the life and limb of Americans (e.g., the continuing threat from al Qaeda).

Those who reflexively oppose certain provisions of the Patriot Act (e.g., the issuance of national security letters for library reading lists) and those who bemoan NSA intercepts of international communications want privacy to take precedence over other manifestations of liberty. As I wrote here, “There can be no absolute liberties where life is at stake. Without life, liberty is meaningless.”

It is clear that it is fully within the president’s constitutional authority to order electronic surveillance of communications between persons in the U.S. and persons overseas. It is especially clear that such surveillance is legitimate because of its war-related purpose.

The Framers intended the executive to be a passive enforcer of laws passed by Congress that bear on domestic affairs (and those laws were to be strictly limited in scope by Article I, Section 8, of the Constitution). At the same time, the Framers intended the executive to defend Americans actively against enemies foreign and domestic. No one has put it more clearly than Justice Felix Frankfurter:

. . . [W]e have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is ‘the power to wage war successfully.’ . . . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as ‘an unconstitutional order’ is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. . . . To recognize that military orders are ‘reasonably expedient military precautions’ in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action . . . is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce.

To get down to cases — the case of NSA surveillance, in particular — Tom Smith of The Right Coast has this to say:

. . . [I]t strikes me as just wrong, and very counter-intuitive, to think of the Fourth Amendment as limiting the President’s Article II wartime powers at all. If this were the case, it would mean something like the President’s powers to wage war against those US citizens who had decided to fight for the enemy, had to be conducted within something like the proscriptions of constitutional criminal procedure. Surely, that can’t be right. This is not to say the President’s Article II powers are unlimited. That is what, I take it, the Youngstown Steel case is about. But if FISA really does subject Article II wartime powers to the procedural rigamarole in FISA, then it would be unconstitutional. . . . So where that leaves us, it seems to me, is fairly clear. The President did not violate FISA, as that statute has been interpreted by the highest court other than the Supreme Court that has has the power to interpret it, and indeed specializes in interpreting it, so presumably is due some deference for that, and thus, for the President’s action to be illegal, it would have to have exceeded his Article II powers. . . . While it is logically possible that the NSA program exceeded the Article II powers, it strikes me as a very implausible claim. We are not talking here about nationalizing the steel industry, or interring all Muslims or something of that sort. We are talking about data-mining calls and emails which have an elevated probability of being connected to terrorism, because they are within a network anchored by phone numbers or email addresses found in al Qaeda phones or computers, or because of charateristics of the calls or emails. If anyone thinks . . . that doing that is outside the President’s Article II powers, they have a ludicrously narrow conception of those powers, a conception simply inconsistent with the President’s discharge of his duty to prevent future catastrophic terrorist attacks on the people of the United States. That alone suggests it is an incorrect conception of those powers, a fact even the Supreme Court is likely to notice.

What we see in the dispute about such things as the Patriot Act and NSA surveillance is a failure to distinguish between the free exercise of liberty, on the one hand, and the necessary exercise of governmental power to preserve liberty, on the other hand. That failure is unwitting — but nonetheless dangerous — when it emanates from persons who simply have no understanding of the Constitution or who wish to live in a dream-world in which government simply cannot encroach upon their privacy for any reason. That failure is entirely witting — and essentially subversive — when it emanates from persons who simply wish to twist the meaning of the Constitution so that it serves their anti-libertarian agenda: statism at home and surrender abroad.

What About Government Data-Mining?

There is, nevertheless, a real threat that surveillance could lead to the creation of massive databases that could be misused by government officials. It is one thing to create databases that enable law-enforcement officials to detect and avert attacks on Americans and Americans’ interests, at home and abroad. It is quite another thing to create and use such databases for the purpose, say, of anticipating or imagining criminal conspiracies.

How, then, is it possible to protect Americans from acts of war, terrorism, insurrection, or rebellion without subjecting them to the very real danger of overreaching on the part of government officials — who will be tempted to misuse the information to which they have access? We learned — on September 11, 2001 — that it is folly to put a firewall between domestic and foreign intelligence. The firewall must be placed elsewhere; here is how I would construct it and where I would place it:

No government agency (including contractors) may collect or store personal information other than that which is gathered pursuant to a specific, constitutionally authorized exercise of authority (e.g., issuing driving licenses, maintaining tax and property records, investigating crimes that have been reported, maintaining records of arrests and convictions, algorithmically surveilling communications for the purpose of detecting possible terrorist activity).

The federal government (and only particular units of the federal government, as authorized by law) may collate such information in a database or databases that may be used only for the purposes of detecting conspiracies to commit acts of war, terrorism, insurrection, or rebellion against the United States, a State, or the citizens of the United States or their property.

Information gleaned from such a database may be used, without judicial approval, to avert an imminent attack or to respond to an attack.

Otherwise, the information gleaned from such a database may be used, with judicial approval, to initiate surveillance of persons or property within the jurisdiction of the United States — and then only for the purpose of preventing acts of war, terrorism, insurrection, or rebellion.

Actions against persons or property outside the jurisdiction of the United States must be taken in accordance with the 1973 War Powers Resolution and/or applicable treaties.

Information gleaned from such a database may never be used for any purpose other than the prevention of or response to acts of war, terrorism, insurrection, or rebellion against the United States, a State, or the citizens of the United States or their property.

Details would be supplied by statute. Compliance would be monitored by a commission; the president, Congress (by concurrent resolution), and the chief justice of the United States each would appoint one-third of the commission’s members.

SUMMARY AND CONCLUSION

Privacy is not, never has been, and never should be an absolute right. To make it such would be incompatible with the defense of life, liberty, and property.

With respect to privacy in the private sector, we should remember that a one-size-fits-all regulation has the predictable effect of fitting almost no one and generally forcing buyers and sellers to make inferior choices. Government should protect Americans from force and fraud. Beyond that, it is up to Americans to decide for themselves how much privacy they wish to enjoy in their voluntary transactions. They could do so quite effectively, and at no additional cost, with the help of “privacy brokers” — firms that would do for consumers what they now do for businesses.

Turning to privacy vis-a-vis government, we should remember that government legitimately seeks to protect the lives and property of Americans, so that they can pursue happiness as they see it. Privacy absolutists — those who place privacy above security — endanger us all. They would render us defenseless against very real and potent threats to liberty and the pursuit of happiness. The idea of a national ID card fails because it would create a vulnerability, not because it would threaten privacy in the land of the ubiquitous Social Security number. On the other hand, there is a legitimate place for the surveillance of telecommunications and for data-mining, as long as the use of both is confined to the protection of life, liberty, and property against our enemies. A way of ensuring that surveillance and data-mining are not misused is to establish an oversight commission comprising members of all three branches of the federal government.

The legitimate function of the state is to protect its citizens from predators and parasites, it is not to protect predators and parasites. The critics of aggressive defense like to proclaim their dedication to civil liberties, but their statist agenda in domestic matters betrays their selective dedication to liberty.

There is a balance to be struck between privacy and liberty, but it should not — and need not — be struck in favor of our enemies. The Constitution is, first and foremost, a mutual defense pact, not a suicide pact.

Privacy, Security, and Electronic Surveillance

Interesting takes on privacy, spawned by the controversy about NSA surveillance of internet and cell-phone communications.

From Orin Kerr (The Volokh Conspiracy):

For those with criminal law experience, this was basically a large-scale pen regsister/trap-and-trace or wiretap. . . .

[T]he details of the program from [James] Risen’s book [State of War: State of War : The Secret History of the C.I.A. and the Bush Administration] arguably explains the national security interest in keeping the domestic surveillance program a secret. It’s not that terrorists may suddenly realize that they may be monitored; that argument never made much sense, as every member of Al-Qaeda must know that they may be monitored. Rather, I suspect the security issue is twofold. In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don’t happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States. The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S. Cf. Bruce Hayden’s comment. No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen’s book more or less says this. The disclosure of the program presumably helps frustrate that objective.

From anarcho-libertarian David Friedman (Ideas):

A computer wiretap is not really an invasion of privacy–nobody is listening. Why should it require a search warrant? If I were an attorney for the FBI, facing a friendly judiciary, I would argue that a computerized tap is at most equivalent to a pen register, which keeps track of who calls whom and does not currently require a warrant. The tap only rises to the level of a search when a human being listens to the recorded conversation. Before doing so, the human being will, of course, go to a judge, offer the judge the computer’s report on key words and phrases detected, and use that evidence to obtain a warrant.

And from Tom Smith (The Right Coast):

Jack Balkin has a very good point here.

To add to it a little bit, technology on the data mining front is moving very fast. In fact, the term data mining is too narrow and somewhat dated. For just a taste of one cutting edge approach, check this out. This company takes a semantic network approach to unstructured databases. There are other approaches as well.

What I am getting at is, if the government puts together a huge database — and Jack is absolutely correct; it is within their capabilities, well within — then with tech from the private sector, not to mention what NSA geniuses come up with, then what they can figure out about individuals, firms, and so on, really does not have any clear limit. It is not at all far fetched to say if the government wanted to, it could know more about people than they know about themselves, a lot more.

There are many questions here. The first is whether the storage of this information violates constitutional protections. I think sentience may make some difference here. If every email you have sent in the last five years is stored in some place the government has access to, but they do not actually access it, then I’m not sure your privacy has been affected at all.

But here is something that worries me, though maybe it shouldn’t. Search algorithms are already astonishingly powerful. They are advancing rapidly. It may be possible soon to pull out from such things as patterns of emails, phone calls, puchases and the like, people likely to be involved in drug trafficing, money laundering, whatever. If an impartial algorithm can troll through a database and produce a list of people who really are, to some high degree of probability, connected with herion trafficking say, should that be enough to support a warrant to start the really intrusive, traditional sort of surveillance?

I have already made clear that I think the President should be able to do exactly this if it is necessary to fight a war. But law enforcement agencies doing it does strike me as pretty creepy. It could be an extremely powerful law enforcement tool, though.

The use of surveillance to create databases from which law-enforcement officials can, with proper judicial oversight, solve crimes and detect actual criminal conspiracies is one thing; the use of those same databases to anticipate or imagine conspiracies is quite another thing, against which we should be on guard. But the second possiblity should not serve as an excuse to prevent the use of surveillance to detect actual or incipient conspiracies to commit acts of war against the United States.

P.S. This is worth reading.

Thought for the Day

Having your overseas communications monitored by the use of an impersonal, computerized algorithm is no more harmful to life, liberty, and happiness than the requirement to use blackout curtains or ration coupons. (And I still have some of my ration coupons from World War II.)

NSA "Eavesdropping": The Last Word (from Me)

I’ll begin with an op-ed by David B. Rivkin and Lee A. Casey, from yesterday’s NYT:

SHORTLY after the Sept. 11 attacks, President Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States. This program was adopted by direct presidential order and was subject to review every 45 days. Judicial warrants for this surveillance were neither sought nor obtained, although key members of Congress were evidently informed. The program’s existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.

The president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions – areas where the Fourth Amendment’s warrant requirements are applicable – but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president’s core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.

After all, even the administration’s sternest critics do not deny the compelling need to collect intelligence about Al Qaeda’s plans so we can thwart future attacks. So instead of challenging the program on policy grounds, most have focused on its legal propriety, specifically Mr. Bush’s decision not to follow the framework established by the 1978 Foreign Intelligence Surveillance Act.

In an effort to control counterintelligence activities in the United States during the cold war, the surveillance act established a special court, known as the FISA court, with authority to issue wiretapping warrants. Instead of having to show that it has “probable cause” to believe criminal activity is taking place (which is required to obtain a warrant in an ordinary investigation), the government can get a warrant from the FISA court when there is probable cause to believe the target of surveillance is a foreign power or its agent.

Although the administration could have sought such warrants, it chose not to for good reasons. The procedures under the surveillance act are streamlined, but nevertheless involve a number of bureaucratic steps. Furthermore, the FISA court is not a rubber stamp and may well decline to issue warrants even when wartime necessity compels surveillance. More to the point, the surveillance act was designed for the intricate “spy versus spy” world of the cold war, where move and countermove could be counted in days and hours, rather than minutes and seconds. It was not drafted to deal with the collection of intelligence involving the enemy’s military operations in wartime, when information must be put to immediate use.

Indeed, it is highly doubtful whether individuals involved in a conflict have any “reasonable expectation of privacy” in their communications, which is the touchstone of protection under both the Fourth Amendment and the surveillance act itself – anymore than a tank commander has a reasonable expectation of privacy in his communications with his commanders on the battlefield. The same goes for noncombatants swept up in the hostilities.

Even if Congress had intended to restrict the president’s ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has “inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”

In this instance, in addition to relying on his own inherent constitutional authority, the president can also draw upon the specific Congressional authorization “to use all necessary and appropriate force” against those responsible for the Sept. 11 attacks “in order to prevent any future attacks of international terrorism against the United States.” These words are sufficiently broad to encompass the gathering of intelligence about the enemy, its movements, its abilities and its plans, a core part of the use of force against Al Qaeda and its allies. The authorization does not say that the president can order the use of artillery, or air strikes, yet no one is arguing that therefore Mr. Bush is barred from doing so.

The fact that the statutory language does not specifically mention intelligence collection, or that this matter was not raised by the White House in negotiations with Congress, or even that the administration had sought even broader language, all points recently raised by former Senator Tom Daschle, is irrelevant.

Overall, this surveillance program is fully within the president’s legal authority, is limited in scope (involving communications to or from overseas related to the war against Al Qaeda), and is subject to stringent presidential review. The contretemps its revelation has caused reveals much more about the chattering classes’ fundamental antipathy to strong government in general, and strong executive power in particular, than it does about presidential overreaching.

The Constitution’s framers did not vest absolute power in any branch of the federal government, including the courts, but they did create a strong executive and equipped the office with sufficient authority to act energetically to defend the national interest in wartime. That is what President Bush has done, and nothing more.

David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H. W. Bush administrations.

Now, to the Executive Vesting Clause of Article II of the Constitution:

The executive Power shall be vested in a President of the United States of America.

That short sentence carries a lot of weight. Here’s what Sai Prakash has to say about it in The Heritage Guide to the Constitution (pp. 179-82):

The [Executive Vesting Clause] . . . accords the President those foreign-affairs authorities not otherwise granted to Congress or shared with the Senate. . . .

The Articles of Confederation lacked an independent chief executive. Instead, the Continental Congress exercised the executive power, appointing and dominating the secretaries of the executive departments. Unfortunately, law execution under the direction of a distracted, plural executive was neighter vigorous nor swift. Congress likewise proved a poor steward of foreign affairs, with American diplomats complaining that Congress could not act with the requisite speed or secrecy. . . .

Resolving to avoid the problems plaguing state and national executives, the Constitution’s makers created an energetic, responsible, and unified executive. . . . The Anti-Federalists well understood the Framers’ design and criticized the unitary executive [but they lost the argument: ED] . . . .

. . . [T]he delegates [to the Constitutional Convention] spoke of the President’s principal foreign-affairs role, oftentimes referring to the Senate’s role in treaty-making as a limited exception to the grant of foreign-affairs authority to the President. . . .

. . . [T]raditional rules of statutory interpretation require us to take seriously the differences in phrasing across the three vesting clauses. Artilce I, Section 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States. . . .”) makes clear that it vests no authorities separate from those enumerated in the rest of Article I. In contrast, Article III, Section 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish.”) clearly vests the federal courts with judicial authority. The Executive Vesting Clause reads like its Article III counterpart, in sharp contrast to the Article I introductory clause. . . .

In a case touching upon foreign affairs, the judiciary has recently reaffired that the executive power grants foreign-affairs authority to the President. See American Insurance Ass’n v. Garamendi (2003). This marks a departure from prior case law, which had grounded the executive’s foreign-affairs powers not in any constitutional text, but in necessity and sovereignty. See United States v. Curtiss-Wright Export Corp. (1936).

John Yoo and James C. Ho, writing in the same volume about the president’s role as commander in chief (pp. 195-8), have this to say:

. . .[S]ome originalist scholars have concluded that Congress’s war power is limited to its control over funding and its power to impeach executive officers. They contend that the President is constitutionally empowered to engage in hostilities with whatever resources Congress has made available to the executive. . . .

In summary, the argument for executive initiative rests on the background understanding that the vesting of “executive Power” and the “Commander in Chief” designation together constitute a substantive grant of authority to the President to conduct military operations.

It is clear that it is fully within the president’s constitutional authority to order electronic surveillance of communications between persons in the U.S. and persons overseas. It is especially that such surveillance is legitimate because of its war-related purpose. The interception of communications by U.S. citizens is merely incidental to that purpose.

The Framers intended the executive to be a passive enforcer of laws passed by Congress that bear on domestic affairs (and those laws were to be strictly limited in scope). At the same time, the Framers intended the executive to defend Americans actively against enemies foreign and domestic. Those who cavil at such things as the NSA’s surveillance of international communications would have it the other way around: They prefer a domestic dictator of social and economic outcomes (as in FDR and LBJ) who is, at the same time, content to leave America exposed to its enemies. Neither FDR nor LBJ were content to leave America exposed to its enemies, but their Democrat Party is not today’s Democrat Party.

Related post: The Constitution and Warrantless “Eavesdropping” (with many links therein)

Where You Stand Depends on Where You Sit

The American Left might have a different attitude toward preemptive defense, surveillance, aggressive interrogation, “secret” prisons, and the Patriot Act if it took the threat seriously. That’s the point I take from a post by David Bernstein at The Volokh Conspiracy:

. . . I predict that Israel will strike Iran within the next few months, with the goal of disrupting or terminating Iran’s nuclear program. . . . I just returned from Israel, and I found a remarkable consensus in favor of doing whatever is necessary to stop Iran (a consensus no doubt solidified by Iranian threats to annihilate Israel, and recent vicious anti-Semitism emanating from the highest rank of the Iranian government). One leftist member of my wife’s family told me that the IDF will do whatever is necessary. When I expressed concern that Iran will retaliate through Hizbullah, he replied that the Lebanese government will stop any large-scale retaliation, or the ramifications will be disastrous in and for Beirut. Other leftists of my acquaintance were equally inclined to support vigorous action against Iran, and equally confident of the government’s ability to manage the situation. Given that the anti-Iranian consensus is so solid even on the Left, I would be very surprised if the Israeli government fails to follow through on its promise to prevent Iran from acquiring atomic weapons–assuming, of course, that Iran isn’t stopped by other international forces.

The American Left of today resembles the Left of the 1930s. In spite of 9/11 and the bombings in Madrid and London, the Left still refuses to acknowledge the threat to America and America’s well-being. Peace in our time will come simply by wishing for it.

The Constitution and Warrantless "Eavesdropping"

FOUR LINKS ADDED, 12/22/05
ONE LINK ADDED, 12/23/05
ONE LINK ADDED, 12/24/05
TWO LINKS ADDED, 12/28/05

. . . 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. (Amendment IV, Constitution of the United States)

Apropos the flap about NSA intercepts of international phone calls, there’s this from Prof. William J. Stuntz of Harvard Law:

. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer’s foe — one more hoop to jump through — but at the time of the Founding it was the constable’s friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use. (From the “Warrant Clause” article in The Heritage Guide to the Constitution, pp. 326-9.)

Thus, by the original meaning of the Constitution, all warrantless searches may be permissible. Judges and legislators have so changed the meaning of the Constitution that, instead, these views are prevalent: government cannot conduct searches without a warrant; warrantless searches are “invasions of privacy.” Moreover, there is — especially among “civil libertarians,” anti-American Americans, and right-wing loonies — a preference for an undifferentiated right to “privacy” (which is not guaranteed by the Constitution) over “the common defence” (to provide for which the Constitution was adopted). Antidotes to such views may be found here:

President had legal authority to OK taps (Chicago Tribune)
Our domestic intelligence crisis (Richard A. Posner)
Several posts by Tom Smith of The Right Coast (start here and scroll up)
Eavesdropping Ins and Outs (Mark R. Levin, writing at National Review Online)
The FISA Act And The Definition Of ‘US Persons’ (Ed Morrissey of Captain’s Quarters)
A Colloquy with the Times (John Hinderaker of Power Line)
September 10 America (editorial at National Review Online)
A Patriot Acts (Ben Stein, writing at The American Spectator)
More on the NSA Wiretaps (Dale Franks of QandO)
The President’s War Power Includes Surveillance (John Eastman, writing at The Remedy)
Warrantless Intelligence Gathering, Redux (UPDATED) (Jeff Goldstein, writing at Protein Wisdom)
FISA Court Obstructionism Since 9/11 (Ed Morrissey of Captain’s Quarters)
FISA vs. the Constitution (Robert F. Turner, writing at OpinionJournal)

War, Self-Defense, and Civil Liberties (a collection of posts)
Prof. Bainbridge Flunks (11/15/05)
Prof. Bainbridge and the War on Terror (12/18/05)

Whose Liberties Are We Fighting For?

A few weeks ago the media disclosed “secret” prisons overseas, where the CIA apparently has been holding baddies. That disclosure will lead to “investigations,” which probably will lead to the end of the “secret” prison program.

In the past few days we have had:

the disclosure of selective, warrantless NSA intercepts authorized in the aftermath of 9/11

a “victory” for those who oppose the use of torture, apparently under any condition

the Senate’s refusal (thus far) to extend a few provisions of the Patriot Act that are set to expire December 31.

What we have here is a concerted effort to hinder the U.S. government’s efforts to detect and thwart terrorist plots. All of this sensitivity about “civil liberties” (including the “liberties” of our enemies) reminds me of the complacency that we felt before 9/11.

What will it take to shake us from that complacency? You know what it will take: a successful terrorist attack in the U.S. that might have been prevented had the media and “civil libertarians” not been so successful in their efforts to protect “civil liberties.”

If the media and “civil libertarians” really cared about civil liberties they would not be in favor of vast government programs that suppress social and economic freedoms. They are the enemies of liberty, and — thanks to them — innocent Americans probably will die.

The legitimate function of the state is to protect its citizens from predators and parasites, it is not — as the left and its dupes would have it — to protect predators and parasites.

The Solomon Amendment

Coyote Blog has it exactly right about the Solomon amendment case now before the Supreme Court (Rumsfeld v. FAIR). If you haven’t heard of it, the Solomon amendment

is the popular name of 10 USC Sec. 983, a . . . federal law that allows the Secretary of Defense to deny Federal grants (including research grants) to institutions of higher education if they prohibit or prevent ROTC or military recruitment on campus.

Pro-defense types (as I am) may instinctively applaud the Solomon amendment. I oppose it, for the very same reason as the proprietor of Coyote Blog:

[The Solomon amendment] may be the new template for government control of individual lives. In both Universities and state governments, the Feds use the threat of withdrawal of federal funds to coerce actions (thing 55 mile speed limit, title IX, military recruiting on campus) that the Constitution nominally does not see[m] to give them authority over. Now, there is the distinct possibility that federal funds to individuals (Social Security, Medicare, unemployment) could be used to increase federal authority and coercive micro-management at the individual level.

It’s quite a shell game. Congress takes money from taxpayers, then “gives” it away — with strings attached. And because the money has passed through the hands of the federal government, the recipients of the money must do the bidding of the federal government. This wouldn’t be happening if people were allowed to keep their money and use it as they see fit.

Here’s hoping the Supreme Court upholds the Solomon amendment. That result would give liberals yet another reason to favor federalism.

Torture and Morality

REVISED, 12/05/05
ADDENDUM, 12/06/05

Torture terrorists if that’s the most effective way of finding out what they’re up to? Why not? Will they refrain from terror if we refrain from torture? Hah!

Is this a war or a tea party, with Alger Hiss as host? Does torturing terrorists (if that’s what it takes to catch the bad guys) make America any less wonderful? Does exceeding the speed limit (if that’s what it takes to make it to the hip-hop party on time) make America any less wonderful? You figure it out.

Torture — or “aggressive interrogation,” if you prefer — can be quarantined. It isn’t contagious; you can’t catch it unless you’re a foreigner who’s caught in the wrong place doing the wrong thing (trying to kill Americans). It’s not exactly like being a babe in the womb.

Anyone who thinks of John McCain as a moral authority on torture because he endured the pain of torture must also think of John McCain as a moral authority on freedom of speech because he has endured the “pain” of political opposition. Experience does not always breed wisdom. John McCain is right about one thing: the war in Iraq. Which means that he is right far less often than a stopped clock, which is right twice a day.

John McCain is all about John McCain. Most Democrats are all about anything that’s anti-Bush and anti-war. If you wish to calibrate your moral compass, do not point it in the direction of John McCain or a Democrat member of Congress (Joe Lieberman excepted).

Torture a terrorist? How could a liberal condone such a thing? A liberal has more important things to condone — murderers and the torture of innocent unborn children, for example.

Tom Smith has much more.

ADDENDUM: So does Blanton at RedState.org:

John McCain is a fool. He is also a charlatan. He is convinced that the world would be better off if everyone agreed with him and has set about to make it so. When McCain was accurately criticized by third party interest groups, he set about restricting the first amendment. Now, because he was a prisoner of war who was tortured, he has decided to take moral high ground on how the United States treats enemy terrorists, though the United States does not torture terrorists. Nonetheless, McCain has chosen to believe terrorists in captivity and reporters bent on destroying the war effort than the military personnel who are keeping us safe.

John McCain is attempting to add to the appropriations process a provision that would prohibit the United States from doing to captured terrorists those things we are prohibited from doing to American citizens under the 5th, 8th, or 14th amendments to the United States Constitution. We will, in effect, be giving constitutional protections to enemy terrorists who, when given the opportunity, slowly saw off the heads (graphic violence) of captured Americans.

Category: Academic Freedom – Civil Liberties – Privacy

Bloggerly Overreach

Cell Phones and Driving: Liberty vs. Life

A Footnote about "Eavesdropping"

Well Said . . .

Apropos Academic Freedom and Western Values

Lefty Profs

A Politically Incorrect Democrat

European Hypocrisy

A Rant about Torture

Recommended Reading about NSA’s Surveillance Program

Words for the Unwise

Privacy: Variations on the Theme of Liberty

Privacy, Security, and Electronic Surveillance

Thought for the Day

NSA "Eavesdropping": The Last Word (from Me)

Where You Stand Depends on Where You Sit

The Constitution and Warrantless "Eavesdropping"

Whose Liberties Are We Fighting For?

The Solomon Amendment

Torture and Morality

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