Riots, Culture, and the Final Showdown

Prologue

This is about the broader implications of the riotous reaction of Muslims to cartoons that ran in a Danish newspaper last October. For the full story, with commentary and plenty of relevant links, go to Michelle Malkin’s blog and start with her post of January 30, “Support Denmark: Why the Forbidden Cartoons Matter,” then read on to the present.

My jumping-off point is this kind of news:

Protesters in Pakistan Target West

LAHORE, Pakistan – Thousands of protesters rampaged through two cities Tuesday, storming into a diplomatic district and torching Western businesses and a provincial assembly in Pakistan’s worst violence against the Prophet Muhammad drawings, officials said. At least two people were killed and 11 injured.

Three Killed in Massive Cartoon Protests

PESHAWAR, Pakistan – Gunfire and rioting erupted Wednesday as tens of thousands of people took to the streets in Pakistan’s third straight day of violent protests over the Prophet Muhammad cartoons. Three people were killed, including an 8-year-old boy.

The second story continues with this:

The European Union condemned both the cartoons, first printed in a Danish newspaper in September, and what it called “systematic incitement to violence” against European diplomatic missions by some unidentified governments.

Bruce Bawer has more about European groveling, and isolated acts of courage, here. Michelle Malkin has plenty to say about the groveling of major American media outlets at her blog (e.g., here). A recent story from ~~the zone of political correctness~~ the academy, reports the suspension of the editors of the Daily Illini (the “independent” student newspaper of the University of Illinois) for having reproduced the cartoons.

The reactions on the part of the EU, much of America’s press, and (I safely assert) most of academia are manifestations of a widespread urge to appease fanatical Islam, about which appeasement I will say more later in this post.

I write here without animus toward Islam, as a religion. My attitude toward Islam as a cultural amalgam of the religious and the social is expressed ably by Occam’s Carbuncle:

. . . What little I know of [Islam] isn’t very appealing at all. It’s rather medieval if you ask me. Not that I hate Muslims. . . . I just don’t care. . . . I don’t believe what they believe and I’m not about to start. Ever. More importantly, I will read what I want to read and I will express myself as I see fit, not within the strictures of Sharia [the code of law based on the Koran], but according to my rights as a citizen of a liberal democracy. That means Muslims do not have the right to impose upon me their own views of what is or is not proper, what is or is not sacrilege or blasphemy. . . . They may not damage my property or my person as reprisal for anything I might say or write. They may express themselves as freely as I. They may insult me. They may shun me. They might even consider ignoring me. But they may not threaten me. They may not do harm in furtherance of the precepts of their religion, just as I may not do harm to show my objection to their dogma.

The following concepts are central to my analysis of Islamic culture, as a force in the affairs of the world:

Despair: To be overcome by a sense of futility or defeat.

Paranoia: Extreme, irrational distrust of others.

Now, on with the post.

Executive Summary

A sense of futility or defeat can be inflicted upon a people by its enemies, or it can be self-inflicted by the culture of the people. A mass culture that prizes mysticism at the expense of rationality and industriousness will, if only subconsciously, come to envy cultures that profit from rationality and industriousness. But the people of the mystical culture will disavow their envy, because to do so would be to admit the inferiority of their culture. They will, instead, take the paranoid view that their backwardness is somehow caused by other cultures — cultures that are “out to get them.” This paranoia focuses the despair of the backward culture, so that its emerges in the form of rage against the culture’s supposed enemies.

The paranoid leaders of a paranoid culture pose an especial danger because of their ability to marshal weapons of mass destruction, and to deploy those weapons in a “righteous” war. In the case of Islamic paranoia, the handwriting is on the wall — and writ in blood.

The West can either act to prevent repititions of 9/11, Madrid, and London — on a larger scale — or it can do nothing and, in doing nothing, invite the conflagration. The choice is nigh. The will to act is in doubt.

Islam: A Culture of Despair and Paranoia

I am struck by the similarity of the Muslim riots — in France last year and in the Middle East this year — to the riots in the “ghettos” of Detroit, Los Angeles, etc. Those riots, like the Muslim ones, were sparked by specific events (e.g., the murder of MLK Jr. and the beating of Rodney King). But those sparks caused explosions because they touched the volatile fuel of desperation.

Whence that fuel? It is created by the chronic illness of the underlying culture. A chronically ill person experiences stress because of his inability to function normally. Prolonged stress can lead to frustration, anger, hopelessness, and, at times, depression. The chronic, self-generated illness of the Muslim culture is similar to that of the black and white “redneck” culture:

There have always been large disparities, even within the native black population of the U.S. Those blacks whose ancestors were “free persons of color” in 1850 have fared far better in income, occupation, and family stability than those blacks whose ancestors were freed in the next decade by Abraham Lincoln.

What is not nearly as widely known is that there were also very large disparities within the white population of the pre-Civil War South and the white population of the Northern states. Although Southern whites were only about one-third of the white population of the U.S., an absolute majority of all the illiterate whites in the country were in the South. . . .

Disparities between Southern whites and Northern whites extended across the board from rates of violence to rates of illegitimacy. American writers from both the antebellum South and the North commented on the great differences between the white people in the two regions. So did famed French visitor Alexis de Tocqueville.

None of these disparities can be attributed to either race or racism. . . . The people who settled in the South came from different regions of Britain than the people who settled in the North–and they differed as radically on the other side of the Atlantic as they did here–that is, before they had ever seen a black slave.

Slavery also cannot explain the difference between American blacks and West Indian blacks living in the United States because the ancestors of both were enslaved. When race, racism, and slavery all fail the empirical test, what is left?

Culture is left.

The culture of the people who were called “rednecks” and “crackers” before they ever got on the boats to cross the Atlantic was a culture that produced far lower levels of intellectual and economic achievement, as well as far higher levels of violence and sexual promiscuity. That culture had its own way of talking, not only in the pronunciation of particular words but also in a loud, dramatic style of oratory with vivid imagery, repetitive phrases and repetitive cadences.

Although that style originated on the other side of the Atlantic in centuries past, it became for generations the style of both religious oratory and political oratory among Southern whites and among Southern blacks–not only in the South but in the Northern ghettos in which Southern blacks settled. . . .

The redneck culture proved to be a major handicap for both whites and blacks who absorbed it. Today, the last remnants of that culture can still be found in the worst of the black ghettos, whether in the North or the South, for the ghettos of the North were settled by blacks from the South. The counterproductive and self-destructive culture of black rednecks in today’s ghettos is regarded by many as the only “authentic” black culture–and, for that reason, something not to be tampered with. Their talk, their attitudes, and their behavior are regarded as sacrosanct. (Thomas Sowell, at OpinionJournal, paraphrasing his essay “Black Rednecks and White Liberals,” from the eponymous book.)

Islamic culture, broadly speaking, seems much like redneck culture in its preference for mysticism or ritual over rationality and industriousness — as well as in its attitude toward women. The adherents of an irrational, indolent culture who have any exposure to other cultures must know that their culture holds them back materially, and that they would be better off if they were to adopt the rational and industrious ways of other cultures. (The closely held wealth of the oil sheikhs has nothing to do with Islam; it is a fortuitous artifact of the geology of the Middle East and the industry of the West.) But to adopt the ways of wealthier cultures is to admit the shortcomings of one’s own culture — and to break with one’s family, friends, and authority figures.

Thus the adherents of the backward culture remain mired in their self-inflicted despair and, instead of blaming themselves and their culture for their backwardness, they blame the outsiders whose relative success they envy. And when their despair erupts in rage it is (in the paranoid view) legitimate to attack the blameworthy — “city folk,” “honkies,” Korean and Jewish merchants, “infidels,” and so on — because they are responsible for keeping us down.

Islamic Paranoia Writ Large

Paranoia is bad enough when it motivates (sometimes organized) mobs to kill, plunder, and destroy. Paranoia is far worse when it motivates leaders who command (or seek to command) the technology of mass destruction — leaders such as Hitler, Stalin, bin Laden, and Iran’s Mahmoud Ahmadinejad. Ahmadinejad is perhaps best known to Americans for his “alleged” involvement in the Iran Hostage Crisis of 1979 and for his utterances about the United States and Israel; for example:

The establishment of the occupying regime of Qods [Jerusalem]was a major move by the world oppressor [the United States] against the Islamic world. . . .

The Palestinian nation represents the Islamic nation [Umma] against a system of oppression, and thank God, the Palestinian nation adopted Islamic behavior in an Islamic environment in their struggle and so we have witnessed their progress and success. . . .

Our dear Imam [Ayatollah Khomeini] said that the occupying regime [Israel] must be wiped off the map and this was a very wise statement. We cannot compromise over the issue of Palestine. Is it possible to create a new front in the heart of an old front. This would be a defeat and whoever accepts the legitimacy of this regime [Israel] has in fact, signed the defeat of the Islamic world. Our dear Imam targeted the heart of the world oppressor in his struggle, meaning the occupying regime. I have no doubt that the new wave that has started in Palestine, and we witness it in the Islamic world too, will eliminate this disgraceful stain from the Islamic world. But we must be aware of tricks.

For over 50 years the world oppressor tried to give legitimacy to the occupying regime and it has taken measures in this direction to stabilize it. . . .

Recently they [the Israelis] tried a new trick. They want to show the evacuation from the Gaza strip, which was imposed on them by Palestinians [oh, really?], as a final victory for the Palestinians and end the issue of Palestine. . . .

I warn all leaders of the Islamic world that they should be aware of this trick. Anyone who recognizes this regime [Israel] because of the pressure of the World oppressor, or because of naiveté or selfishness, will be eternally disgraced and will burn in the fury of the Islamic nations. (From a speech given in Tehran, Iran, on October 16, 2005, to an Islamic Student Associations conference on “The World Without Zionism.”)

The Culture Clash and the Final Showdown

Ahmadinejad, like bin Laden, whips despair into rage, a rage that is aimed at the imagined “enemies” of Islam. Bin Laden, of course, has succeeded in turning some of those imagined enemies into real ones by attacking them. Ahmadinejad seems bent on following bin Laden’s lead, but on a larger scale.

It is too late to appease such fanatics — much as some Westerners would like to try appeasement — because The West (the United States, in particular) has “insulted” Islamic fanatics in three fundamental ways: by the creation of Israel, by the “exploitation” of the Middle East’s geology, and by the defense of Israel and those Middle Eastern governments that permit the “exploitation.” Given that history, the only way to appease paranoid Islamists is for Americans to don the raiment of mystical asceticism, which might appeal to a select circle of self-flagellants, but to very few others of us.

What I am saying, really, is that a final showdown with fundamentalist Islam is inevitable. Most Americans did not understand the inevitability of that showdown until September 11, 2001 — and many Americans (including most “intellectuals” and many politicians who should know better) still refuse to acknowledge the significance of that day’s events. The doubters seem to be trapped in 1938, waiting for the UN or a Democrat president to announce “peace in our time,” or in 1939-40, unwilling to believe that America could be the target of a fanatical ideology.

It is futile to hope that hard-core Islam can be deflected through political correctness (e.g., banning speech that might offend Muslims), diplomatic maneuverings, support for dissidents, or other such transparently weak responses to aggression, terrorism, and the accumulation of weapons of mass destruction. In fact, such responses are worse than futile; they encourge what they seek to discourage because they display weakness — just as displays of weakness on the part of the United States from 1979 onward encouraged the events of September 11, 2001.

The next stage of the showdown, if it is allowed to happen, will come when al Qaeda (or one of its ilk) acquires and uses weapons of mass destruction in Europe or the United States. The following stage of the showdown, if it is allowed to come to that, will come when Iran acquires nuclear weapons.

I repeat: The question is not whether those events will happen, but when they will happen if they are not thwarted by intelligence-gathering, clandestine operations, conventional military operations, and massive strikes against hard military targets (including nuclear “power” facilities). Force is the only thing that will stop Islamic fanatics; force is the only response that they will heed — just as the Japanese, fanatical as they were, had no choice in the end but to abandon their fanatical ways.

It Is a Question of Will

We had better get used to that idea that war is the answer, and see to it that adequate force is used, sooner rather than later. Those who would use force against us will heed only force. Whether, in defeat, they will respect us or “merely” fear us is irrelevant. We are not engaged in a popularity contest, we are engaged in a clash of civilizations, which Norman Podhoretz rightly calls World War IV.

On our present political course, however, we will suffer grave losses before we get serious about winning that war. The Left (or the Opposition, as I now call it), seems insensitive to the danger that faces us. The voices of doubt and division are many and loud. They range from librarians, academicians and celebrities (too numerous to link), and hypocrites in the media to former vice president Gore and many current members of Congress (e.g., these), some of whom would prefer to impeach President Bush for defending us through a constitutional surveillance program than face up to the enemy without. Their preferred vision of government — strength at home and weakness in foreign affairs — is precisely opposite the vision of the Framers of the Constitution.

Ben Shapiro goes too far in suggesting “that Congress ought to revivify sedition prosecutions,” but he is right about the likely effect of the Opposition’s outpourings; for example:

Let us consider . . . the probable consequences of Gore’s mea culpa [before a Saudi audience] on behalf of the “majority” of his countrymen. No doubt his words will fuel the massive tide of propaganda spewing forth from Muslim dictatorships around the globe. No doubt his words will be used to bolster the credibility of horrific disinformation like the Turkish-made, Gary-Busey-and-Billy Zane-starring monstrosity “Valley of the Wolves: Iraq,” which accuses American troops of war atrocities and depicts a Jewish-American doctor (Busey) slicing organs out of Arab victims and shipping the body parts off to New York, London and Israel. No doubt Gore’s speech will precipitate additional violence against Americans in Iraq and around the globe.

(Not to mention the media’s constant re-hashing of Abu Ghraib.)

Thomas Sowell, as usual, gets to the heart of the matter:

With Iran advancing step by step toward nuclear weapons, while the Europeans wring their hands and the United Nations engages in leisurely discussion, this squeamishness about tapping terrorists’ phone contacts in the United States is grotesque.

Has anyone been paying attention to the audacity of the terrorists? Some in the media seem mildly amused that Palestinian terrorists are threatening Denmark because of editorial cartoons that they found offensive.

Back in the 1930s, some people were amused by Hitler, whose ideas were indeed ridiculous, but by no means funny.

This was not the first threat against a Western country for exercising their freedom in a way that the Islamic fanatics did not like. Osama bin Laden threatened the United States on the eve of our 2004 elections, if we didn’t vote the way he wanted.

When he has nuclear weapons, such threats cannot be ignored, when the choice is between knuckling under or seeing American cities blasted off the face of the earth.

That is the point of no return — and we are drifting towards it, chattering away about legalisms and politics.

Which leads me to the ultimate question, which James Q. Wilson addresses in “Divided We Stand: Can a Polarized Nation Win a Protracted War?” Wilson concludes:

A final drawback of polarization is more profound. Sharpened debate is arguably helpful with respect to domestic issues, but not for the management of important foreign and military matters. The United States, an unrivaled superpower with unparalleled responsibilities for protecting the peace and defeating terrorists, is now forced to discharge those duties with its own political house in disarray.

We fought World War II as a united nation, even against two enemies (Germany and Italy) that had not attacked us. We began the wars in Korea and Vietnam with some degree of unity, too, although it was eventually whittled away. By the early 1990s, when we expelled Iraq from Kuwait, we had to do so over the objections of congressional critics. In 2003 we toppled Saddam Hussein in the face of catcalls from many domestic leaders and opinion-makers. Now, in stabilizing Iraq and helping that country create a new free government, we have proceeded despite intense and mounting criticism, much of it voiced by politicians who before the war agreed that Saddam Hussein was an evil menace in possession of weapons of mass destruction and that we had to remove him.

Denmark or Luxembourg can afford to exhibit domestic anguish and uncertainty over military policy; the United States cannot. A divided America encourages our enemies, disheartens our allies, and saps our resolve–potentially to fatal effect. What Gen. Giap of North Vietnam once said of us is even truer today: America cannot be defeated on the battlefield, but it can be defeated at home. Polarization is a force that can defeat us.

Let us hope — against hope, I fear — that the Opposition comes to its senses before it is too late.

Related posts: War, Defense, and Civil Liberties (a collection of links)

Buy Legos

Jennifer Roback Morse explains why.

Legalism vs. Liberty

We have a Constitution that was written by men who knew what it meant to fight for liberty. As Justice Felix Frankfurter wrote,

we 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.

In spite of that, we now have men and women who seem opposed to the notion that fighting a war in order to win it is every bit as constitutional as regulating interstate commerce in order to dictate the labeling of canned goods. How is it that such men and women can go so wrong? Here’s how:

They understand, correctly, that citizens may not be deprived of liberty without due process of law.

They twist that principle to mean that due process of law is synonymous with liberty.

That leads them to challenge any defense of liberty that — in their view — violates due process, even if the result of their challenge is to enable the enemies of liberty

They have, in other words, mistaken means for ends and come down on the side of means, as opposed to ends. That is to say, they prefer the tokens of libert to liberty, itself. And sometimes they seem downright determined to help the enemies of liberty.

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study)
More about War and Civil Liberties
The Illogic of Knee-Jerk Civil Liberties Advocates
Torture and Morality
The Constitution and Warrantless “Eavesdropping”
NSA “Eavesdropping”: The Last Word (from Me)
Privacy, Security, and Electronic Surveillance
Privacy: Variations on the Theme of Liberty
Words for the Unwise
Recommended Reading about NSA’s Surveillance Program

(Final?) Words about Preemption and the Constitution

Toward the end of “Libertarianism and Preemptive War: Part II” I said that

[t]he decision to preempt is a political judgment in which Congress puts America’s sovereignty and the protection of Americans’ interests above putative treaty obligations. It seems unlikely that a court (the U.S. Supreme Court, in particular) would find that the constitutional grant of power to declare war, which is so fundamental to America’s sovereignty and to the protection of Americans’ interests, can be ceded by treaty to an international body that cannot be relied upon to protect our sovereignty and our interests.

When I quoted a portion of that passage in a comment thread at Catallarchy, Joe Miller took exception in a post at his blog, Bellum et Mores. Joe and I then had an inconclusive exchange in the comment thread. We focused on the constitutionality (or lack thereof) of those provisions of the UN Charter that bear on the conduct of war by members:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. (Article 39)

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. (Article 51)

I won’t repeat the whole exchange between Joe and me (which you can read here), just some of my main points:

[The Charter] (in theory) delimits Congress’s authority to declare war, even though that authority isn’t delimited in the Constitution. (There’s no mention there of “self defense,” for example.) The . . . UN Charter, therefore, amounts to constitutional amendment by treaty. That’s not how the Constitution is supposed to be amended. . . .

. . . Our membership in the UN . . . amounts to a general concession that the Security Council (not Congress) gets to decide when we are acting in self-defense and when we can go to war when we are not acting in self-defense (as the Security Council sees it). . . . [T]he provisions of the UN Charter with respect to war do not merely implement Congress’s authority to declare war — rather, they fundamentally modify that authority.

. . . I have no problem with treaties that implement powers granted to Congress and the president (e.g., the negotiation and ratification of trade treaties). I have a fundamental problem with a treaty (the UN Charter) that circumscribes the power of Congress to declare war. That isn’t an implementation of a constitutional power, it’s a denial of a constitutional power. . . .

In ratifying the Charter, the Senate essentially surrendered a good chunk of (if not all of) Congress’s constitutional authority to declare war. . . . In other words, if the U.S. were to abide by the letter of the UN Charter (as interpreted by the Security Council, not Congress), the president and Congress would be prevented from taking actions that they judge to be in the best interest of Americans. That, it seems to me, vitiates the Framers’ intent, which was to place the decision about going to war in the hands of the elected representatives of the people of the United States — and certainly not in the hands of foreign powers. . . .

It all comes down to [this] question: Who gets to decide whether certain conditions [for going to war] are met — Congress or an international body over which Congress has no authority? Answer: international body over which Congress has no authority. The U.S. (in theory) can go to war only with the approval of both Congress and the international authority. Again, I submit that that’s an unconscionable violation of American sovereignty.

Brian Doss says it very well in a post at Catallarchy, which ends with this:

[S]ince the Constitution is the ultimate source of authority in the US government, and as it trumps both law and treaty when there is conflict; and as the Constitution may not be amended by treaty but by manner prescribed by the Constitution; and as it would require an amendment to the Constitution to substantively modify Congress’ warmaking authority; the UN treaty therefore is not a legal constraint upon the US Congress’ warmaking authority, and Congressional [authorizations for the use of military force] or declarations of war are necessary and sufficient for a US war’s legality.

Precisely.

But I’m confident that we’ll be hearing more from Joe. Stay tuned.

Related posts: War, Self-Defense, and Civil Liberties (a collection of links)

The Fatal Naïveté of Anarcho-Libertarianism

The anarcho-libertarians at the Ludwig von Mises Institute are at it again. They’re flogging “The Production of Security,” by Gustave de Molinari (1819-1912). The idea, as usual, is to sell the notion that police services and even national defense can be provided through competitive, private firms. Toward the beginning of the essay Molinari asserts that

if everyone had, in one word, an instinctive horror of any act harmful to another person, it is certain that security would exist naturally on earth, and that no artificial institution would be necessary to establish it. Unfortunately this is not the way things are. The sense of justice seems to be the perquisite of only a few eminent and exceptional temperaments. Among the inferior races, it exists only in a rudimentary state. Hence the innumerable criminal attempts, ever since the beginning of the world, since the days of Cain and Abel, against the lives and property of individuals.

Well, there seem to be enough of “the inferior races” (of all races) to guarantee that “criminal attempts” will continue, without abatement, unless the potential victims of those attempts establish institutions for the purpose of deterring and punishing crime. Molinari, of course, believes that private institutions can do the job. Toward the end of the essay he says that

[u]nder the rule of free competition, war between the producers of security entirely loses its justification. Why would they make war? To conquer consumers? But the consumers would not allow themselves to be conquered. They would be careful not to allow themselves to be protected by men who would unscrupulously attack the persons and property of their rivals. If some audacious conqueror tried to become dictator, they would immediately call to their aid all the free consumers menaced by this aggression, and they would treat him as he deserved. Just as war is the natural consequence of monopoly, peace us the natural consequence of liberty.

Under a regime of liberty, the natural organization of the security industry would not be different from that of other industries. In small districts a single entrepreneur could suffice. This entrepreneur might leave his business to his son, or sell it to another entrepreneur. In larger districts, one company by itself would bring together enough resources adequately to carry on this important and difficult business. If it were well managed, this company could easily last, and security would last with it. In the security industry, just as in most of the other branches of production, the latter mode of organization will probably replace the former, in the end.

The “customers would not allow themselves to be conquered”? Tell that to those who pay gangsters for “protection” and to the residents of gang-ridden areas. Molinari conveniently forgets that the ranks of “competitors” are open to “the inferior races,” who in their viciousness will and do “unscrupulously attack the persons and property of their rivals.” If not everyone is honorable, as Molinari admits, why would we expect private providers of security be honorable? Why would they not extort their customers while fighting each other? The result is bound to be something worse than life under an accountable state monopoly (such as we have in the U.S.) — something fraught with violence and fear. Think of The Roaring Twenties without the glossy coat of Hollywood glamour.

Molinari and his anarcho-libertarian descendants exhibit the Anne Frank syndrome. About three weeks before Frank and her family were betrayed and arrested, she wrote this:

It’s a wonder I haven’t abandoned all my ideals, they seem so absurd and impractical. Yet I cling to them because I still believe, in spite of everything, that people are truly good at heart.

Molinari and his ilk do not express the jejune belief that all “people are truly good at heart,” yet they persist in the belief that the security can be achieved in the absence of an accountable state. That is, like Anne Frank, they assume — contrary to all evidence — that “people are truly good at heart.” But competition, by itself, does not and cannot prevent criminal acts. Competition, to be beneficial, must be conducted within the framework of a rule of law. That rule of law must be enforced by a state which is accountable to its citizens for the preservation of their liberty.

The present rule of law in the United States is far from perfect, but it is far more perfect than the alternative dreamt of by anarcho-libertarians.

Defense, Anarcho-Capitalist Style
But Wouldn’t Warlords Take Over?
My View of Warlordism, Seconded

Joel Stein’s "Logic"

For those few of you who haven’t read Joel Stein’s op-ed piece (“Warriors and Wusses“) in the L.A. Times — the one that begins “I don’t support our troops” — here’s the “logic” of the piece:

The U.S. has imperialistic ambitions (except when it doesn’t).

People who after 9/11 enlisted in the Army had noble motives (defense of the country) — but they really knew that they were signing up to advance the (sometimes) imperialistic ambitions of the U.S.

Those soldiers who knew that they were signing up to advance the (sometimes) imperialistic ambitions of the U.S. were “tricked” into signing up for the war in Iraq. (Okay, Stein, which is it?)

The war in Iraq is “immoral” (just because Stein asserts that it is).

Bush is to blame for the “immoral war” in Iraq (no mention of Congress, which authorized the war and still supports it).

But the soldiers who serve in Iraq really are to blame for the “immoral war” there because they refuse to lay down their arms. Why do they refuse? Because (according to Stein) they really enlisted either (a) to advance their country’s imperialistic ambitions or (b) because they were “tricked” into enlisting (by Bush, presumably) and persist in fighting even though (I’m reading between the lines here) they must by now be aware that they were “tricked.” Got that? (Stein never deigns to mention the possibility that the soldiers who serve in Iraq are executing a legal war in accordance with their contractual obligations, which they entered into because they chose to risk their lives in the defense of their country.)

Therefore — even though Stein is willing to concede that the U.S. should honor its contractual obligations to those “immoral” soldiers (e.g., health care and pensions) — it should not honor them with a parade because to do so would make traffic worse than it is already.

In sum, the price of “immorality” is to be denied a parade, but only because the resulting traffic jam would inconvenience Stein. Wow!

What a piece of work is Stein. Not a logical bone in his head or a patriotic bone in his body. He belongs with these people.

More Foxhole Rats

First, there’s Joel Stein:

I DON’T SUPPORT our troops . . . .

But when you volunteer for the U.S. military, you pretty much know you’re not going to be fending off invasions from Mexico and Canada. So you’re willingly signing up to be a fighting tool of American imperialism . . . .

[W]e shouldn’t be celebrating people for doing something we don’t think was a good idea. All I’m asking is that we give our returning soldiers what they need: hospitals, pensions, mental health and a safe, immediate return. But, please, no parades.

Seriously, the traffic is insufferable.

What’s with this “we” business, you insufferable jerk?

Then, there’s William Blum

a Washington, D.C. writer, [who] responded delightedly last Thursday on learning that Osama bin Laden had cited his book in an audiotape. Blum called the mention of Rogue State: A Guide to the World’s Only Superpower “almost as good as being an Oprah book”. . . .

Blum explained his response by saying he found bin Laden no worse than the U.S. government: “I would not say that bin Laden has been any less moral than Washington has been.” He even refused to distance himself from bin Laden’s views: “If he shares with me a deep dislike for certain aspects of U.S. foreign policy, then I’m not going to spurn any endorsement of the book by him. I think it’s good that he shares those views.”

Blum describes his life mission as “slowing down the American Empire…injuring the beast.”

What’s with these Leftists and their fixation on an American “empire”? These two, in particular, ought to be grateful they didn’t live in Nazi Germany, the ambitions of which were truly imperial — and genocidal, to boot.

Shall We All Hang Separately?
Foxhole Rats
Foxhole Rats, Redux
Know Thine Enemy
The Faces of Appeasement
Give Me Liberty or Give Me Non-Aggression?
We Have Met the Enemy . . .
Words for the Unwise

More "McCarthyism"

No, it’s not that we’re having another spate of “McCarthyism” — it’s simply time to revisit the myth of “McCarthyism.” More than a year ago I wrote this:

. . . McCarthy was right, but his methods backfired and caused otherwise sensible people to conclude that the “witch hunt” was nothing more than that. From Wikipedia, here:

In 1995, when the VENONA transcripts were declassified, it was learned that regardless of the specific number, McCarthy consistently underestimated the extent of Soviet espionage. VENONA specifically references at least 349 people in the United States–including citizens, immigrants, and permanent residents–who cooperated in various ways with Soviet intelligence agencies.

It is generally believed that McCarthy had no access to VENONA intelligence, deriving his information from other sources. VENONA does confirm that some individuals investigated by McCarthy were indeed Soviet agents. For example, Mary Jane Keeney was identified by McCarthy simply as “a communist”; in fact she and her husband were both Soviet agents. Another individual named by McCarthy was Lauchlin Currie, a special assistant to President Roosevelt. He was confirmed by VENONA to be a Soviet Agent.

And here:

The VENONA documents, and the extent of their significance, were not made public until 1995. They show that the US and others were targeted in major espionage campaigns by the Soviet Union as early as 1942.

The decrypts include 349 individuals who were maintaining a covert relationship with the Soviet Union. It can be safely assumed that more than 349 agents were active, as that number is from a small sample of the total intercepted message traffic. Among those identified are Alger Hiss, believed to have been the agent “ALES”; Harry Dexter White, the second-highest official in the Treasury Department; Lauchlin Currie, a personal aide to Franklin Roosevelt; and Maurice Halperin, a section head in the Office of Strategic Services. Almost every military and diplomatic agency of any importance was compromised to some extent, including, of course, the Manhattan Project. Even today, the identities of fewer than half of the 349 agents are known with any certainty. Agents who were never identified include “Mole”, a senior Washington official who passed information on American diplomatic policy, and “Quantum”, a scientist on the Manhattan Project.

Some known spies, including Theodore Hall, were neither prosecuted nor publicly implicated, because the VENONA evidence against them could not be made public. VENONA evidence has also clarified the case of Ethel and Julius Rosenberg, making it clear that Julius was guilty of espionage while Ethel was guilty of cooperating, while also showing that their contributions to Soviet nuclear espionage were less important than was publicly alleged at the time. In fact, Ethel had been only an accomplice, and Julius’ information was probably not as valuable as that provided by sources like “Quantum” and “Pers” (both still unidentified.)

This is an extremely different picture from the one that which had developed over most of 50 years in the absence of solid evidence. While critics debate the identity of individual agents, the overall picture of infiltration is more difficult to refute. The release of the VENONA information has forced reevaluation of the Red Scare in the US….

Now comes David Berstein of The Volokh Conspiracy, who is reviewing Martin Redish’s book, The Logic of Persecution: Free Expression and the McCarthy Era. Among the many things Bernstein has learned while doing research for his review are these:

. . . .

(2) Hollywood scriptwriters who were members of the Communist Party (CPUSA) were expected to use their positions to promote Communist doctrine and the Party’s agenda, or, if that was not possible, at least to work to exclude anti-Soviet sentiment. (And I already knew, but you might not have, that each of the Hollywood Ten was a member of the CPUSA.)

(3) The first federal prosecution under the Smith Act (later used to prosecute CPUSA leaders) was the prosecution of eighteen leaders of the Trotskyist Socialist Workers Party 1941. The CPUSA not only applauded this action; Party leaders assisted in the prosecution.

(4) The Smith Act prosecutions of CPUSA leaders were largely a result of the fact that top government officials had recently learned from decoded “Venona cables” between the Soviet Union and its agents and affiliates abroad that the Soviet Union used American Communists to engage in wide scale espionage against the United States. The CPUSA leaders were not prosecuted for espionage and related charges (conspiracy) because that would have involved revealing that the U.S. had deciphered the Soviets’ code, and also much of the additional evidence the government had was obtained in violation of the Fourth Amendment. Instead, the government resurrected the Smith Act, and proceeded with prosecutions of highly dubious constitutionality (though upheld by the Supreme Court, which implicitly recognized that these prosecutions were “special”).

(5) Not only did the CPUSA recruit spies for the Soviet Union through its “secret apparatus,” it was prepared to engage in violence on behalf of the Soviet Union.

(6) The Smith Act prosecutions and other government and private anti-Communist activity destroyed the usefulness of the CPUSA to the Soviet Union for espionage.

(7) Many of the questionable tactics used by the government against domestic Communists in the late 1940s and 1950s, including Smith Act prosecutions, were previously used by the government against domestic Nazis and fascists in the late 1930s and early 1940s by the Roosevelt Administration.

(8) Alger Hiss was not prosecuted for spying because the statute of limitations had expired.

(9) During the “Red Decade” of the 1930s, Hollywood Communists ran their own blacklist againist their political enemies. Because the studio bosses didn’t support this blacklist, it wasn’t as effective as the 1950s blacklist of Communists, but it seriously harmed careers nevertheless. Also, many in Hollyood boycotted those who testified before HUAC, allegedly as revenge for “naming names”. But is there any serious doubt that the boycotters’ attitudes would be very different if their targets had discussed with Congress Nazi, as opposed to Communist, infiltration of Hollywood?

(10) Then there’s this quote from historian Ellen Schrecker, who is generally sympathetic to the Communists, regarding the blacklist, which conflicts with the theme of a couple of major Hollywood movies: “Most of the men and women who lost their jobs or were otherwise victimized were not apolitical folks who had somehow gotten on the wrong mailing lists or signed the wrong petitions. …Whether or not they should have been victimized, they certainly were not misidentified.” On the other hand, anti-Communist historian Klehr states that “many innocent people were harassed.” But Redish concludes that “for the most part, it seems that the blacklists were accurate.”

(11) Much of what is now labeled “McCarthyism” consisted of spontaneous action by private individuals and groups to boycott Stalinists. Unfortunately, I have yet to find a sound source that persuasively explains to what extent these private actors interacted with the government. For example, I still don’t have a firm sense to what extent the Hollywood blacklist was the result of a fear of bad publicitly and threats to boycott the industry from various anti-Communist groups, and to what extent it was motivated by fear of potential government regulation.

The use of “questionable tactics” should not diminish the fact that the enemy was in our midst. The “scare” wasn’t a scare — it was about the real thing.

A Quick Thought for a Friday Afternoon

Most Democrats (and everyone to their left) favor abortion, oppose capital punishment, and oppose defense. (No, really, how can one claim to be in favor of defending the country when — just for example — one is opposed to intercepting enemy communications, detaining terrorists caught in battle, and questioning them rigorously?) Anyway, here’s how those preferences play out:

Murder innocents. Spare murderers.

It would make a great bumper sticker.

Ecoutez!

A president speaks:

“The leaders of states who would use terrorist means against us, as well as those who would consider using in one way or another weapons of mass destruction, must understand that they would lay themselves open to a firm and adapted response on our part,” Bush said during a visit to a nuclear submarine base. . . .

“This response could be a conventional one. It could also be of a different kind.”

Bush, who is commander-in-chief of the armed forces, said all of [his country’s] nuclear forces had been configured with the new strategy in mind and the number of nuclear warheads on . . . nuclear submarines had been reduced to allow targeted strikes.

It was the first time he had so clearly linked the threat of a nuclear response to a terrorist attack.

Oops. “Bush” est vraiment Jacques Chirac. Zat cow-boy.

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, 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.

A New Whine from Prof. Bainbridge

Today, the prof picks up a theme that resounds on the loony right: War without a foreseeable end (i.e., the war on terror) means the limitless accretion of power in the hands of the presidency. Yeah, well, we had a Cold War thatfor almost 40 years had no foreseeable end, and the prof and his ilk remain at large and unstifled.

(The title of this post is a bad pun on the prof’s wine snobbery.)

Lew-nacy

Apropos “Neo-Nazi Conned?“: LewRockwell.com has a department called “The Peace Archive,” which features writings by many obscure loonies and such eminent ones as Pat Buchanan, Bobby (Klansman) Byrd, and Cindy Sheehan. Strange bedfellows, indeed, for a staunch anti-statist. Lew, your desperation is showing.

East Meets West

Mark Steyn writes:

Since the president unveiled the so-called Bush Doctrine–the plan to promote liberty throughout the Arab world–innumerable “progressives” have routinely asserted that there’s no evidence Muslims want liberty and, indeed, that Islam is incompatible with democracy. If that’s true, it’s a problem not for the Middle East today but for Europe the day after tomorrow. According to a poll taken in 2004, over 60% of British Muslims want to live under Shariah–in the United Kingdom. If a population “at odds with the modern world” is the fastest-breeding group on the planet–if there are more Muslim nations, more fundamentalist Muslims within those nations, more and more Muslims within non-Muslim nations, and more and more Muslims represented in more and more transnational institutions–how safe a bet is the survival of the “modern world”?

Perhaps safer than he thinks. Gerard Van der Leun reckons that a

second series of attacks on America at the level of 9/11 or greater will not bring out more B-52s. They are already out. A second series will bring out the one arm of America’s war machine that has rarely been asked about, written about, or even mentioned in passing since September, 2001; the ballistic missile submarines. . . .

Under the right circumstances, human beings are capable of anything. . . . Should Europe feel the threat of Islam within its borders too keenly it is not difficult to envision it returning to the up close and personal techniques of genocide it perfected in the last century. Europe is very, very good at police states, purges, death camps, massacres and Gulags. Although it may look to be weak and appeasing, Europe’s final solution skill set is never stored very far away.

Should the United States come to feel threatened in a similar way, its preferred technique (also perfected in the last century) is remote genocide. . . . I have no doubt that, if we feel for any reason threatened enough, we will indeed come to the day when the unthinkable becomes doable.

This is why I still deeply believe that the current effort in Iraq and the Middle East to counter and expunge Islamic terrorism and turn Islam from the road it is on towards one of reformation and assimilation is the best path that can be taken at this time. Indeed . . . this shoot-the-moon, Hail Mary of a foreign policy in Iraq is not just a policy to make America safer at home. It is the only thing that stands between Islam and its own destruction.

Sometime shortly after 9/11 in an online forum I frequented then, an exasperated idealist proclaimed that “After all, you can’t kill a billion Muslims.” Like so many others he spoke from somewhere outside History. History, especially the world’s most recent history, shows us all that, “Yes, if you really want to, you can.”

And that is the most terrible and terrorizing thought of the 21st century.

But less terrible and terrorizing than the alternative.

A Final Thought for 2005

I refuse to bow to the conventional libertarian-liberal wisdom that a vigorous defense of liberty should not include selective surveillance, indefinite detention of enemies, or aggressive interrogation of the same. Eternal vigilance is the price we must pay for life, liberty, and the pursuit of happiness.

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)

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