Monday, August 06, 2007

Bush, Congress, Pass Bill Legalizing Evil

From the Times, President Bush Signs Law To Widen Legal Reach For Wiretapping.

And how quietly it passed, despite all the uproar over the past several years about Bush's spying program. Apparently the Democrats in Congress were not worried that Republicans would be using this law to spy on them and destroy them.

As regular readers will remember, I tend not to worry all that much about government wiretapping and spying. I think we have plenty of other things to worry about our government doing before troubling ourselves whether big brother is listening in on our calls to grandma. What the program allows for is warrantless wiretapping of suspected terrorists overseas making calls to the United States. Cause for concern? Not in my mind. Reason to remain vigilant? Always, always, always.

If, in a good faith attempt to monitor a terror suspect, the government catches a child molester, I won't shed any tears. If the government uses the program as an excuse to catch child molesters, drug dealers, and other domestic criminals, there are mechanisms for dealing with this violation of the law, despite what they're saying on Hit and Run. The Due Process Clause of the 5th Amendment is always available when the government acts blatantly outside it's bounds. Yes, I do understand that the law is extremely deferential, but it is not a licence to spy indiscriminately.

The truth is, whatever the law happens to be, we have very little control over government spying and whether or not our privacy is being violated. Don't forget that all over the country, law enforcement violates the letter and the spirit of the law in the course of surveillance and investigations. Even in my utopian libertarian world, this would still be an issue, because cops and spies are as human as the rest of us and it can be difficult to walk the fine line that the Constitution draws. The reason that our 4th Amendment jurisprudence developed the exclusionary rule was a means of dealing with these difficulties and human frailties.

My reaction here stems from the point of the view that the mechanics of this sort of spying are far less important than the results- and by results, in this case I'm specifically referring to the actual damage done to our liberty and democracy. The moment this program becomes a front for catching drug dealers and petty criminals is the moment I change by tune, but for now, I see no reason to get myself all worked up. Critics complain that we don't even no who's been illegally spied upon by the government. In my mind, that's a good thing because it means either that the government hasn't exceeded it's appropriate terror fighting boundaries or that in the individual circumstances where the government has exceeded it's bounds in the course of spying, it has not followed up inappropriately through traditional criminal channels.

Allow me to throw in one other thought. The militarization of crime fighting, as Radley Balco has tirelessly chronicled, has become a major issue here on the domestic front. Fighting crime as if one were fighting a war is problematic, if for nothing more than the fact that the acceptable collateral damage of war is so much higher than the acceptable collateral damage of fighting crime.

When it comes to fighting terrorism, I think many people tend to fall for the opposing fallacy, that fighting terrorism internationally should be be fought the same way we fight crime. This comes to the forefront with this wireless surveillance program, as it is criticized from a traditional criminal perspective and supported through the lens of traditional warfare. The problem is, "the war on terror" doesn't fit well into the traditional distinctions between war and crime, between the national and the international. This is a theme that I've stressed since the start of this blog, that in fighting terror we need to look to a third way that's not traditional crime fighting or traditional war. And not every mechanism for fighting terror deserves the same treatment- for instance, I think scrutiny does need to be given to the detainment of foreign terrorists, and distinctions must be drawn between "terror suspects" and "enemy combatants" captured on the battlefield. But when it comes to spying, I don't think we've ever made much distinction between war and peace. We spy on international threats to our nations, without warrants, because we want to be able to protect ourselves without handicaps. It seems almost preposterous that if Osama bin Laden called me on the phone, the government would have to obtain a warrant to listen to the conversation. It's just not how the world works, which is something I think libertarians need to remember.


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