Sunday, January 28, 2007

Privacy Rights and Terrorism

Gen. Michael Hayden, nominated by President Bush to become the director of the CIA, headed the NSA from March 1999 to April 2005.



The opponents of the Patriot Act and the NSA wiretaps claim they “dismantle our Constitutional and shred our privacy rights.”

How do they dismantle the Constitution?

By shredding our privacy rights.

How do they shred our privacy rights?

By violating the 4th Amendment.

Unfortunately these opponents seem under the very mistaken impression that America’s Constitution guarantees its citizens “absolute privacy,” when in fact, it does not.

Perhaps many of these opponents are unfamiliar with the 4th Amendment. It’s possible, so here it is,
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The key phrase there is “UNREASONABLE search and seizure,” leaving what is “reasonable” very much up to interpretation. An extremely restrictive interpretation would make it virtually impossible to prosecute crimes, while a very loose interpretation would allow both government and individuals to violate our privacy at will. It would seem than that "reasonable" is best defined in between those two extremes in a very "moderate" way, one that allows government's law enforcement to be intrusive enough to catch and compile evidence on bad guys, but restrictive enough that it deters things like identity theft and the sale of private cell phone records.

One thing is very certain and that’s that this Amendment does not imply anything close to absolute privacy for American citizens.

Here's the problem with absolute, sacrosanct privacy - with it, there'd be no way to effectively gather evidence to prosecute any crimes, let alone have any chance of stopping crimes before they occur.

Historically, America's law enforcement has generally been reactive (responding after the fact) to criminal acts and to minor, even to individual acts, that works fine.

However, beginning with our drug policies, disruption and deterrence through pre-crime interdiction have been increasingly been used. Drug smugglers and suppliers have been arrested on carrying/transporting charges and put away based on the weight of the contraband in their possession. RICO statutes now allow federal prosecutors to confiscate all the “allegedly illicit gains" (houses, cars, etc) from an illegal enterprise, while police have increasingly relied on the “No-knock” warrant to go after particularly dangerous felons.

Mothers Against Drunk Driving (MADD) spurred the use of deterrence through pre-crime interdiction to drunk driving and its use has grown ever since.

In recent years, law enforcement has come to determine and the public has accepted random roadside sobriety checkpoints are the only way to stop drunk drivers BEFORE they kill.

Online pedophile stings, that run very close to what many Civil Libertarians call "entrapment," are the only way to effectively stop pedophiles BEFORE they rape children.

And intrusive electronic and financial surveillance is the only way to effectively stop terrorists BEFORE they carry out their acts of unconventional warfare.

But it's taken terrorism (an act of unconventional warfare), like the act of terrorism that on 9/11/01 killed nearly 3000 American, and could take many times that in the near future if we fail in our vigilance, to fully put privacy rights into a better perspective.

The fact of the matter is that privacy threats have changed, especially in the electronic age. While an individual’s illicit actions cannot/should not be shielded by law from the government (ie. intersection surveillance cameras, roadside sobriety checkpoints and the like), we can and must be increasingly protected from individual intrusion (ie. identity theft and selling of our cell phone records by disreputable individuals).

Terrorism is not a criminal act. It is an act of unconventional warfare directed at civilian populations and as such it cannot be responded to reactively, or “after the fact.” It must be interdicted prior to the event or massive civilian casualties and incredible economic dislocation may result.

In arguing in favor of the most restrictive privacy rights, the favored argument of Civil Libertarians is to attack the argument, "If you've got nothing to hide, you've got nothing to fear," BUT that is NOT what advocates of reasonable surveillance (the NSA being able to track calls into and out of the U.S. to "suspect foreign portals") and reasonable intrusion (like those roadside sobriety checkpoints and those online pedophile stings) are arguing.

The argument is that "absolute and sacrosanct privacy" can be a detriment to public safety and that a balance must be struck and "reasonable" must be reasonably defined and it is unreasonable to consider terrorism a mere variety of “violent crime.”
On this issue, it seems that either you "get it" or you don't.

Ed Koch gets it, while Dennis Kucinich doesn't.

Rudy Giuliani gets it while Michael Moore doesn't.

I really don't understand how anyone can still "not get it," at this late hour, but perhaps its a function of priorities.

Like those "man in the street" interviews sometimes done by CNN and by Talk radio, showing how few people can identify Iraq on a blank map and how many more people can recognize Paris Hilton than know who Condi Rice is.

Hell, few people can identify Iowa on a blank map.

Many people seem to kick into gear only after an idea reaches critical mass. Sadly, the mainstream media (MSM) has done such a relentless job of separating Iraq from the broader WoT and hammering the idea that "Iraq was not our enemy," to get those ideas to critical mass.

Thankfully much of the public is (A) lazy and (B) both wary of the MSM and bereft of the time to soak in a full message in anything other than small bits.

Still, those ideas certainly seem to be reaching critical mass now, at least to some extent.

The MSM seems to be very deliberate and focused on their goals - Iraq first, then the NSA wiretaps, then the closing of GITMO and then a gutting of whatever remains of the Patriot Act.

That agenda amounts to an unconditional surrender on the WoT.

Think about it, the NY Times, like most of the MSM quickly surrendered in the wake of "the Danish cartoons controversy," they folded and publically admitted that it was unwise to be making fun of, or even be thought to be making fun of the "religion of peace."

I don't see it as pure defeatism, but the universal mantra of the "peace & love" crowd - "Angry people just need a hug."

Their view on crime ("thugs need therapy and hugs rather than punishment") is the same as their view on terrorism ("we just need to be more nice to them and show them we mean them no harm").

Lots of kindred spirits sought to give the likes of John Wayne Gacey and Ted Bundy hugs, unfortunately they didn't live to tell of it.

Same scenario, different mechanism.

(Thanks to Jeremayakovka for stimulating discussion.)



Terrorists no question attacked us on that fateful day and I say if the terrorists want to tap and monitor U.S. citizens phone calls and conversations, so be it.

JMK said...

Uhhh, ther are already many terrorist cells here.

They don't rely on wiretaps, they already know the target THEY'LL hit.

That's why the FISA Courts, along with four other federal courts long ago approved of the NSA tracking calls/emails from "suspect foreign portals" INTO the U.S.

The only recent (post-9/11) expansion of that policy is that they now also track calls/emails FROM the U.S. TO "suspect foreign portals."

Given that the former is Constitutional, it stands to reason that the latter is as well.

American Ideas Click Here!