Saturday, December 17, 2005

Considering the War on Terror and Civil Liberties

Imagine the following hypo: (We law students really like hypotheticals.) In the early morning before 9-11, our intelligence agencies receive some chatter about the possibility of a terrorist attack, to occur sometime after daybreak using airplanes. Maybe there’s no time to get a warrant. Or maybe there are too many potential suspects, not all of whom it would be even possible to obtain warrants for. The intelligence community decides to undertake some drastically illegal surveillance, in the name of national security. Through this surveillance, they uncover the identities of several of the 9-11 hijackers. Maybe torture is used to uncover more of the plot. With this work, 9-11 is averted, and thousands of American lives are saved.

The question is, after 9-11 has been averted, what do we do next? What do we do with the captured terrorists? What do we do with the government that tortured people and blatantly violated the Constitution?

The lonely libertarian doesn’t have an easy answer, and is surprised with people who do.

The protection against illegal searches and seizures tends to take its form judicially in the form of the exclusionary rule. Basically, evidence discovered in an illegal search or seizure is inadmissible in court. This tends to work very well in a criminal context. If you want to search or eavesdrop, you better get yourself a warrant. But how would this apply to our hypothetical situation? In our hypo should we let the captured 9-11 hijackers go? That just seems, for lack of a better word, insane.

Again, I have no easy answers. Part of the problem is that fighting the war on terror is neither like fighting a typical foreign war, nor is it like fighting domestic crime. It’s somewhere in between, and as such, we should ideally try to figure out some rules that fit between these two other extremes.

Issuing blanket statements denouncing torture and denouncing the potentially unconstitutional measures of the Patriot Act do little to deal with the real problems. For whatever reason, people over the past four years have been worked up because the government is able to look at your library records. For whatever reason, that doesn’t concern me very much. For one thing, I never knew my records from the local public library were considered to be private. And additionally, I don’t care if the government knows what I’m reading or not, although I think looking in to my library records would be a waste of time, and money.

The Patriot Act, and really all of the Civil Liberties concerns of the War on Terror do not affect us as ordinary Americans. We’re not going to be put under surveillance or tortured. This is about the protection of criminal rights to the extreme- the protection of the rights of terrorists or those who deal with terrorists.

Personally, the lonely libertarian has far greater civil liberty concerns. The War on Drugs for instance, violates the rights of ordinary Americans every day. Drug laws themselves violate the very personal right to control over our own bodies. And beyond that, in fighting the War on Drugs the government invades our privacy, and uses paramilitary tactics against its own citizens.

It’s not as though all the Patriot Act concerns, and concerns over Bush’s reason admission of illegal NSA surveillance don’t concern me. But crossing a fine line, one that we’ve really had difficulty defining, in protecting the country from terrorist attacks pales in comparison to the other issues of civil liberty and individual freedom that the government seems to have a real problem with.

Update: Let me just be clear. I'm opposed to torture in all but the most dire circumstances, and I'm opposed to any form of "big brother" surveillance. My point is, it's foolish to think that those issues are the most pressing dangers to our rights and liberties.


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