Liberty, privacy, and survival in the age of terror

At what point does a citizen's right to an expectation of privacy end and the compelling interest of government to protect us from disaster begin?

To those who pretend the question is an easy one — right or left — a pox on you. This issue is much too serious to have liberals using the New York Times as a weapon in their hysterical war on sanity. Nor do my friends on the right cover themselves in glory by being so dismissive of what, at the very least, is a troubling shift in policy regarding how far the government can sidle up to the line of wrongdoing without going over.

The issue is one of transcendent importance for the future of liberty in America.

The potential for mischief—making by the government as well as private citizens and companies is so great that if the revelations surrounding the NSA intercept program prove anything at all, it is that the law has failed to keep ahead of the rapid, almost magical improvements in the technology available to invade the sacred space that all free citizens should be able to rightly call their own.

How important is the "right to be let alone"? Here's Justice Brandies in a famous dissent (Olmstead v. U.S., 277 U.S. 438, 478) declaring in 1928 that the writers of the US Constitution conferred...:

...the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The key word in that statement is 'unjustifiable.' When does the government have the right to violate a citizen's Fourth Amendment rights?' After all, for a document that can at times be frustratingly vague, the Constitution gets very specific when talking about a citizen's right to be 'let alone:'

'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.'

What the Constitution has guaranteed is a private space — or a wall if you will — that the government is prevented from trespassing against except in 'justifiable' circumstances. And even in those circumstances, the Constitution is extraordinarily specific about what the government can and can't do. If the First Amendment was designed to be a sweeping guarantee of American liberty, then certainly the Fourth Amendment serves a similar purpose as a guarantee of our privacy.

Clearly the framers of the Constitution didn't believe that you could have liberty without privacy. Which brings us to the present and the capabilities of government to violate our privacy in ways that the framers or Justice Brandies could never have imagined in their worst nightmares.

Writing in the American Thinker, Frederick W. Stakelbeck, Jr. dealt with one aspect of this explosion in the government's technological capabilities for potentially violating our privacy in an article yesterday on Radio Frequency Identification (RFID) technology. This tracking technology is becoming more obtrusive as both businesses and government find new and novel ways to use it. Stakelbeck asks the right questions:

Despite the technology's apparent cost and control benefits for businesses and government, the use of RFID technology raises a plethora of important legal, ethical and privacy questions that as of today remain largely unanswered. For example, what legal rights do individual U.S. citizens have if they believe their privacy has been violated by an overzealous business or government agency? How will an already overburdened court system react to the almost certain influx of RFID—related cases?

Similar questions were asked a decade ago when, without much fanfare, the FBI substantially increased its ability to wiretap citizen's communications. The Communications Assistance for Law Enforcement Act (CALEA) on its face, would seem to be a dangerous leap in the capability of government to spy on our private communications. CALEA mandated that telephone companies aid wiretapping by installing remote wiretap ports onto their digital switches so that the switch traffic would be available for snooping by law enforcement. After CALEA passed, the FBI no longer had to go on—site with wiretapping equipment in order to tap a line—they could monitor and digitally process voice communications from the comfort of the office.

But this is nothing compared to the truly frightening capabilities of the National Security Agency (NSA) to capture, monitor, and even listen to the most private and personal of communications initiated by American citizens. Relying on technology that is almost magical in its ability to gather massive amounts of electronic communications and sift through them for relevant intelligence, it would seem inevitable that, even though the NSA is precluded from using this technology to spy on American soil, communications involving completely innocent American citizens would be caught up in this digital dragnet.

Although the actual working of the technology is a closely guarded secret, the program authorized by President Bush probably uses some kind of voice recognition technology as well as something even more revolutionary: a new way to organize the data collected so that networks can be identified and uncovered. To do this kind of work, a system capable of collecting and analyzing trillions (terabytes) of pieces of information at once would be necessary. The system would flag hundreds of electronic communications at a time, which may be a practical reason why the Administration wished to finesse the Foreign Intelligence Surveillance Act (FISA). Even though warrants could have been issued retroactively, the massive number of intercepts may have made that a practical impossibility.

The above is speculation, of course, because no one really knows and, unless the we've all completely lost our senses, no one should know. For if our enemies ever learned how the system actually worked, they could take steps to neutralize it. Even the pitifully small amount of information that has come to light could have damaged our ability to track and thwart the designs of our enemies. And herein lies the great conundrum involving our liberty and our survival.

What good comes of insuring our survival at the expense of losing some of our liberty?

If one of our cities were destroyed by a nuclear weapon smuggled into the country by al Qaeda, I daresay the relatives of the dead would answer that question much differently than the arm chair civil libertarians who so blithely condemn the Administration's actions in the aftermath of 9/11. There are even those who say that there is no choice to make, that our survival as a nation is not at stake at all, therefore any argument that includes a loss of privacy rights as a way to head off an al Qaeda attack is setting up a straw man to justify oppression.

I don't have much sympathy for that argument, but I am troubled that our government has skated so close to the line involving spying on innocent American citizens, and may have in fact crossed it. Ultimately, it must come down to a question of responsibility. You and I are not responsible for the safety and security of the United States. The Constitution has vested that awesome responsibility in the office of the President. In the end, where you come down on this controversy depends on how much you trust the occupant of that office not to abuse his authority nor misuse the frightening power our technological prowess has bestowed upon his government to invade our most private and personal spaces.

For if in fact we are in a war for the survival of our republic — and our enemies themselves have made it abundantly clear that this is what the War on Terror is all about — we are in grave danger if we give in to the temptation to turn the issue of liberty versus security into a political club in order to beat one's political opponent for acting dictatorially or, just as bad, unpatriotically. The issue is too important for the kind of lazy generalities being tossed about regarding an absolutist position on civil liberties or aiding and abetting the enemy in a time of war. In the end, we must trust each other or perish.

This compact of trust between government and its citizens has been mangled almost beyond repair both by the actions of overzealous intelligence agencies as well as a cynicism born of nearly 4 decades of Presidential misconduct. It is one thing to have a healthy skepticism involving those in power. It is quite another to automatically assume that the occupant of the White House is an evil, power—mad Big Brother who would use the capabilities of government snooping for nefarious purposes. Even President Nixon's criminal spying on political opponents was justified in his own mind as a response to what he saw as a domestic insurrection. The fact that there were tens of thousands of Americans in the streets waving the flag of an enemy that was killing thousands of American soldiers in Southeast Asia while calling for the violent overthrow of the government justified, in the Nixon inner circle's own thoughts, almost any wrongdoing that the President and his aides could imagine.

There have been no accusations against this President that the NSA wiretapping program has targeted political opponents. Instead, there have been serious questions raised about innocent Americans being insecure in their communications with each other. In short, the protections guaranteed by the Fourth Amendment have been frayed around the edges by this intelligence gathering program, not trampled willy nilly by an administration hell bent on gathering unto itself dictatorial powers in order to quash dissent or secure political advantage.

And until evidence emerges to the contrary, is there any reason not to take the President of the United States at his word that the program targets foreign terrorists and not innocent Americans? At bottom, the trust we placed in Mr. Bush by re—electing him must have at its core a belief that he is doing his best to protect us while not violating our cherished rights. This is essentially what living in a democracy means. Anything else, and we might as well crown a king or anoint a dictator to protect us. That way, we would simply do as we're told and not have to worry about trusting anyone.

Rick Moran is a frequent contributor and is proprietor of the blog Right Wing Nuthouse

At what point does a citizen's right to an expectation of privacy end and the compelling interest of government to protect us from disaster begin?

To those who pretend the question is an easy one — right or left — a pox on you. This issue is much too serious to have liberals using the New York Times as a weapon in their hysterical war on sanity. Nor do my friends on the right cover themselves in glory by being so dismissive of what, at the very least, is a troubling shift in policy regarding how far the government can sidle up to the line of wrongdoing without going over.

The issue is one of transcendent importance for the future of liberty in America.

The potential for mischief—making by the government as well as private citizens and companies is so great that if the revelations surrounding the NSA intercept program prove anything at all, it is that the law has failed to keep ahead of the rapid, almost magical improvements in the technology available to invade the sacred space that all free citizens should be able to rightly call their own.

How important is the "right to be let alone"? Here's Justice Brandies in a famous dissent (Olmstead v. U.S., 277 U.S. 438, 478) declaring in 1928 that the writers of the US Constitution conferred...:

...the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The key word in that statement is 'unjustifiable.' When does the government have the right to violate a citizen's Fourth Amendment rights?' After all, for a document that can at times be frustratingly vague, the Constitution gets very specific when talking about a citizen's right to be 'let alone:'

'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.'

What the Constitution has guaranteed is a private space — or a wall if you will — that the government is prevented from trespassing against except in 'justifiable' circumstances. And even in those circumstances, the Constitution is extraordinarily specific about what the government can and can't do. If the First Amendment was designed to be a sweeping guarantee of American liberty, then certainly the Fourth Amendment serves a similar purpose as a guarantee of our privacy.

Clearly the framers of the Constitution didn't believe that you could have liberty without privacy. Which brings us to the present and the capabilities of government to violate our privacy in ways that the framers or Justice Brandies could never have imagined in their worst nightmares.

Writing in the American Thinker, Frederick W. Stakelbeck, Jr. dealt with one aspect of this explosion in the government's technological capabilities for potentially violating our privacy in an article yesterday on Radio Frequency Identification (RFID) technology. This tracking technology is becoming more obtrusive as both businesses and government find new and novel ways to use it. Stakelbeck asks the right questions:

Despite the technology's apparent cost and control benefits for businesses and government, the use of RFID technology raises a plethora of important legal, ethical and privacy questions that as of today remain largely unanswered. For example, what legal rights do individual U.S. citizens have if they believe their privacy has been violated by an overzealous business or government agency? How will an already overburdened court system react to the almost certain influx of RFID—related cases?

Similar questions were asked a decade ago when, without much fanfare, the FBI substantially increased its ability to wiretap citizen's communications. The Communications Assistance for Law Enforcement Act (CALEA) on its face, would seem to be a dangerous leap in the capability of government to spy on our private communications. CALEA mandated that telephone companies aid wiretapping by installing remote wiretap ports onto their digital switches so that the switch traffic would be available for snooping by law enforcement. After CALEA passed, the FBI no longer had to go on—site with wiretapping equipment in order to tap a line—they could monitor and digitally process voice communications from the comfort of the office.

But this is nothing compared to the truly frightening capabilities of the National Security Agency (NSA) to capture, monitor, and even listen to the most private and personal of communications initiated by American citizens. Relying on technology that is almost magical in its ability to gather massive amounts of electronic communications and sift through them for relevant intelligence, it would seem inevitable that, even though the NSA is precluded from using this technology to spy on American soil, communications involving completely innocent American citizens would be caught up in this digital dragnet.

Although the actual working of the technology is a closely guarded secret, the program authorized by President Bush probably uses some kind of voice recognition technology as well as something even more revolutionary: a new way to organize the data collected so that networks can be identified and uncovered. To do this kind of work, a system capable of collecting and analyzing trillions (terabytes) of pieces of information at once would be necessary. The system would flag hundreds of electronic communications at a time, which may be a practical reason why the Administration wished to finesse the Foreign Intelligence Surveillance Act (FISA). Even though warrants could have been issued retroactively, the massive number of intercepts may have made that a practical impossibility.

The above is speculation, of course, because no one really knows and, unless the we've all completely lost our senses, no one should know. For if our enemies ever learned how the system actually worked, they could take steps to neutralize it. Even the pitifully small amount of information that has come to light could have damaged our ability to track and thwart the designs of our enemies. And herein lies the great conundrum involving our liberty and our survival.

What good comes of insuring our survival at the expense of losing some of our liberty?

If one of our cities were destroyed by a nuclear weapon smuggled into the country by al Qaeda, I daresay the relatives of the dead would answer that question much differently than the arm chair civil libertarians who so blithely condemn the Administration's actions in the aftermath of 9/11. There are even those who say that there is no choice to make, that our survival as a nation is not at stake at all, therefore any argument that includes a loss of privacy rights as a way to head off an al Qaeda attack is setting up a straw man to justify oppression.

I don't have much sympathy for that argument, but I am troubled that our government has skated so close to the line involving spying on innocent American citizens, and may have in fact crossed it. Ultimately, it must come down to a question of responsibility. You and I are not responsible for the safety and security of the United States. The Constitution has vested that awesome responsibility in the office of the President. In the end, where you come down on this controversy depends on how much you trust the occupant of that office not to abuse his authority nor misuse the frightening power our technological prowess has bestowed upon his government to invade our most private and personal spaces.

For if in fact we are in a war for the survival of our republic — and our enemies themselves have made it abundantly clear that this is what the War on Terror is all about — we are in grave danger if we give in to the temptation to turn the issue of liberty versus security into a political club in order to beat one's political opponent for acting dictatorially or, just as bad, unpatriotically. The issue is too important for the kind of lazy generalities being tossed about regarding an absolutist position on civil liberties or aiding and abetting the enemy in a time of war. In the end, we must trust each other or perish.

This compact of trust between government and its citizens has been mangled almost beyond repair both by the actions of overzealous intelligence agencies as well as a cynicism born of nearly 4 decades of Presidential misconduct. It is one thing to have a healthy skepticism involving those in power. It is quite another to automatically assume that the occupant of the White House is an evil, power—mad Big Brother who would use the capabilities of government snooping for nefarious purposes. Even President Nixon's criminal spying on political opponents was justified in his own mind as a response to what he saw as a domestic insurrection. The fact that there were tens of thousands of Americans in the streets waving the flag of an enemy that was killing thousands of American soldiers in Southeast Asia while calling for the violent overthrow of the government justified, in the Nixon inner circle's own thoughts, almost any wrongdoing that the President and his aides could imagine.

There have been no accusations against this President that the NSA wiretapping program has targeted political opponents. Instead, there have been serious questions raised about innocent Americans being insecure in their communications with each other. In short, the protections guaranteed by the Fourth Amendment have been frayed around the edges by this intelligence gathering program, not trampled willy nilly by an administration hell bent on gathering unto itself dictatorial powers in order to quash dissent or secure political advantage.

And until evidence emerges to the contrary, is there any reason not to take the President of the United States at his word that the program targets foreign terrorists and not innocent Americans? At bottom, the trust we placed in Mr. Bush by re—electing him must have at its core a belief that he is doing his best to protect us while not violating our cherished rights. This is essentially what living in a democracy means. Anything else, and we might as well crown a king or anoint a dictator to protect us. That way, we would simply do as we're told and not have to worry about trusting anyone.

Rick Moran is a frequent contributor and is proprietor of the blog Right Wing Nuthouse