August 05, 2004

evil in our midst

It was said on September 12, 2001 that “everything changed” on 9-11. This Curmudgeon, for one, never ascribed to that notion. The only thing that really changed that day was the level of awareness of the American people as to the risks and challenges that lay ahead of us. The increased awareness is of course a good thing-unless the awareness turns into panic.

And panic we did over the knowledge that those who would attack The Home Of The Free are already here in our midst. The terrorism hysteria manifested itself in the atrocious piece of legislation known audaciously as “The Patriot Act”.

Never in our history since the Alien and Sedition Acts have we been quite so cavalier in our attitude toward the Constitution. Certainly we have had other Chief Executives that bent and fractured their oath to defend the Constitution, but what stood out during the Patriot Act rubber stamping extravaganza was the Silence of the opposition. That Congress put up no fight whatsoever against warrantless searches and indefinite detention of suspects without charges is unconscionable.

I have been a strident critic of the Executive and Legislative branches of our government which rushed to grab power and placate fears with no regard to our Constitution and legacy of Human Rights, but it is an interesting question of whether the harm done by the Patriot Act is permanent or something more transient. It will be decades before we know the answer to this question, but I for one will be surprised if the damage done by allowing Congress to expand its powers in such a grandiose fashion disappears into the legislative sunset. My hunch is that the legal briefs have already been written that rely on the historical and legal precedent that Congress may use emergency powers to re-write our fundamental Constitutional protections in whatever manner they see fit. And of course if the Congress can do it in an emergency, then really “We the People” have not retained that inalienable right after all.

But I wish to lay aside the matter of whether the undoable can be undone and for a naively optimistic moment assume that reason and sound jurisprudence will return to our public discussion. It has been suggested to me that our time would be well spent to debate as a nation exactly where we will head and what we will tolerate when the “next 9-11” inevitably hits. I too think that would be wise, so here is my short contribution to the debate.

Technology is steadily eliminating what little privacy we have and in my view, we must resist all attempts to relax the proscriptions against government intrusion into our lives. Of course that piece of rhetoric, left to stand on its own, neatly side-steps the question of how permissible and impermissible intrusion might be defined, but I wish to pause on this basic point just the same.

Pause to simply point out the simple truth that Government, unfettered by Constitutional strictures, tends to accumulate power and to oppress its citizens. History is rife with examples of this axiom and our founders sought to protect its posterity from this fundamental tendency toward the accumulation of power. Our socio-legal system consists of a fine balance between the needs of the individual and those of the larger society. What is unique in our Republic is that we recognize the legal supremacy of individual liberties as a counterweight to the excesses of a government nominally pursuing the “general welfare”. This bit of genius is a big part of what has made America different and we should not abandon these fundamental precepts lightly.

But, on to specifics. What should be permissible police investigation in a nation that also recognizes extraordinary threats that are internal? My answer is simple: anything with a warrant. Anything where an officer of the law can make the case for “Probable Cause” to an independent judicial body. I for one do not buy the argument advanced by the hysteria generating political class that warrants are too burdensome. This simply does not pass the smell test. No matter how many times the Attorney General might repeat this lie, it will not make it true.

It is well established in our jurisprudence that warrants may be obtained under exigent circumstance through a phone call to a judge. I am not being novel or unrealistic when I suggest that this method for obtaining warrants can and should be expanded to assist in the fight against terrorism. Far better to add enough judges to the bench to make them accessible than to throw out the Fourth Amendment in a fevered rage. Frankly, this is so obvious and reasonable that I am stunned that we seldom hear it advanced. So much for our “leaders” who claim to care about civil liberties and who are sworn to defend the Constitution.

We hear much of data mining as well and it is suggested by some that data mining is new and distinct from sifting other forms of information. My Grandma had a technical term for that type of assertion: hogwash. Data is nothing but facts reduced to digital representation. It is a logical fallacy to suggest somehow a fact on a piece of paper in someone’s possession is ontologically different because it has been digitally recorded and is easily obtained. The key is in “easily obtained”. The desire for unfettered data mining is driven by the reality that it is easier than real police work.

I am not suggesting that data mining will not work. On the contrary, I understand that it can be a very effective tool for fighting all sorts of crimes. The problem I have with it is the cost to our liberties. This is a classic “slippery slope” from which there is no climbing back up. Can anyone doubt that once this “data” is accumulated that it will not be preserved forever no matter how unwise we might deem it to be in retrospect?

But only by looking at this from a philosophical perspective does this become truly terrifying. If we allow unfettered data mining, gone are the protections afforded us by the legal requirement of “reasonable suspicion”. Instead, we have entered a new and fundamentally different world where no suspicion whatsoever is required to investigate your purchases, education, or reading habits.

And if you believe the Attorney General’s statements to the effect of, “well, we just won’t use these powers in that way”, then you need to see your doctor about adjusting your Prozac prescription.

It doesn’t sadden me so much that there are few people who view such governmental over-reaching with outrage. What really depresses me is that there are precious few who even recognize that there are issues here worthy of discussion. These are matters that would have put previous generations in a complete uproar, but contemporary America is just rolling over and accepting it without real discussion.

Such is the end result of the dumbing down process our country has undergone over the last few decades. We are dumbed down to the point that a surprising number of Americans actually think that Shrub is a bright and honest guy.

There is indeed evil in our midst and something must be done. Determining that something to do gets difficult though when one understands that the evil is not alien to our society after all.

Exceedingly difficult when the evil turns out to be us.


Blogger Common Good said...

"The only thing that really changed that day was the level of awareness of the American people as to the risks and challenges that lay ahead of us. The increased awareness is of course a good thing-unless the awareness turns into panic."

Everything did change that day... you missed the point in your statement. What changed was "our innocence... our belief that we were safe in our own nation*".... and we will never get it back in our lifetimes. With any luck, our posterity will be able to claim some of it back... but our lives were changed forever on that day.

* We live with many forms of lost innocence. When we first realize everyone dies. When we first realize we are all at risk of disease like cancer. When we realize we are always at risk of random domestic crime... i.e. crime statistics. But 911 was something entirely different... at least for me. My life did change on 911, and it was the first time I ever felt that way. It's this generations time to pay the piper... that seems totally fair to me. Just consider what generations before us went through to keep this experiment alive.

Regarding your view that we have gone to far with the Patriot Act, I would like to start with the premise that we face an almost impossible task. We are now asked to decide as a free society to balance security in an age of nukes, etc. with our civil liberties. It's like any other issue in a democracy, we decide on that answer via the democractic process. It's high stakes, and there is no chance every citizen will draw their civil rights line in the sand in the same place. I have said it before, and I will say it again... I think the right/moral answer may very well be ZERO impact on our civil liberties, and take our chances from there. I can't shoot holes in that argument. That said, I also believe others can make an equally moral argument that "we should allow X", because the constitution isn't a death pact. So I'm not prepared to argue the merits of the Patriot Act... I've never taken the time to read through it. I will make the following observation however regarding data mining. I think the "warrant" thing isn't the point about data mining. As a matter of fact, one could say that our police, FBI, etc. have much different odds of PREDICTING AND CATCHING THE BAD GUYS BEFORE THEY ACT with data mining vs without data mining. I'm not taking a position here on whether we should allow it or not, or who we should allow it on (citizens, only foreigners that meet a profile)... I'm only stating the obvious... "police will have a much better chance to catch bad guys before they act with CONSTANT data mining". The key there is CONSTANT... these guys are on a fishing expedition... they don't know what they don't know. A warrant has nothing to do with it... you are either blanket data mining or you are not. I could get off on a sidebar and talk about mechanisms to oversee such an invasive invasion to our civil liberties, but I think I will leave it there... an honest discussion of this topic requires everyone to agree it's not simply about process and warrants... it's bigger than that. It's whether a society decides to allow such invasion in an effort to survice (or a perceived effort to survive).

On a somewhat related topic, I was watching one of the House's committees discussing the 911 proposal of intelligence agency reform. One of the impressive panelist, William Odom, made the point that you will never get intelligence sharing out of the FBI until you split out the intelligence function from the criminal function of the FBI. The criminal side is by their nature trying to "prove" cases, and they aren't willing to jeopardize there cases by sharing information. I guess that means Mr. Odom was for some form of MI5 or something... but he didn't elaborate. Interesting times... interesting decisions to be made.

2:11 PM  
Blogger Tony Plank said...

Common Good,

As a point of clarification, what I am saying is that Data Mining is a warrantless search in violation of the 4th Amendment. We need a constitutional amendment to allow it. I'm pretty sure you agree with me on that, I just wanted to be clear on what I am saying.

2:19 PM  
Blogger Brackenator said...

It can be argued that since the end of WWII we have been moving toward a Socialist style republic with some democratic modifications, but what set us apart from the Soviet block is that we were not a police state. We had our rights!
Common Good makes some interesting points, but one thing we need to remember, crisis or not, when it comes down to national security, the government has NEVER had a problem with violating civil rights.
Case in point. Do you think that the government did everything by the book when going after Julius and Ethel Rosenburg? Were their civil rights preserved in the same manner as everyone else? The American Public could overlook such a horror because it was in the middle of the fabricated Red Scare and the Rosenburg's were traitors.
Where were people asking if rules of evidence were followed?
I am not comparing anyone to the Rosenburg's. Just trying to remind people that this is not the first time the Government has bent the rules to the breaking point. This IS the first time it has been legislated to this extent.
Some food for thought. The only thing the law enforcement has to do to violate many of your civil rights at this time is explain that you are involved in terrorism. The impetus is not on them for proving the involvment in terrorism, it is on the person to prove he wasn't. Innocent before proven guilty goes right out the window.
Now on back to the Curmudgeon. What will the government DO with all of the data it has collected? Create a marketers paradise and sell the information to the highest bidder? Use it to track irregular use of credit cards? Will they delete it? Anyone who has worked for the government knows they rarely destroy any data, unless instructed to do so.
Last point, what will the goverment analyst think of YOUR patterns of living, shopping, entertainment? What do they say about YOU? And how will an analyst INTERPRET YOUR habits?

Think about it, after you do, I bet you will be contacting your representative and senators asking them not to renew the Patrior Act provisions.


2:39 PM  
Blogger Common Good said...


Yes... any change in civil liberties should show up in the constitution as an ammendment. I remembered I hadn't mentioned that in the post after I had saved it. The one thing that brings up for me is sunset provisions. I very much believe in them... the Patriot Act was set to expire... and it forced it to be revisited. Can we introduce sunset provisions in the Constitution.. sounds crazy but I can't think of a reason we couldn't.


"The only thing the law enforcement has to do to violate many of your civil rights at this time is explain that you are involved in terrorism. The impetus is not on them for proving the involvment in terrorism, it is on the person to prove he wasn't. Innocent before proven guilty goes right out the window."

I agree with you on this, but kind of see it as a seperate issue from the data mining. The data mining issue is "Do it or not, do it only piecemeal with a warrant, do it aggressively across the board in an ongoing manner, etc). If the fishing expedition turns something up.... then the government should have to bring the evidence... i.e. innocent until proven guilty should still rule. Question: did the Patriot Act authorize wholesale warrantless data mining? I've heard the arguments about library books, but I don't know if the government already has a free hand in warrantless data mining.

3:58 PM  
Blogger Tony Plank said...

The Patriot act authorized data mining for particular types of data. This is of course unconsititutional, but everyone is pretending it isn't.

As far as Sunseting a constitutional provision-you most certainly could. Or it could be repealed as in the case of prohibition.

Of course, with data mining, a sunset (even a legal constitutional one) would only do so much good: once the data is created, it will never go away.

4:04 PM  
Blogger The Commentator said...

No, the evil among you are, well, terrorists. Carefully balancing security and civil liberties is a problem for democracies who fight with one hand tied behind their backs. Americans consider only one side of the equation. Even when they debate enlighten issues such as this one, it detracts them. Americans look too much through the lenses they choose to put on. Occam's Razor tells us that 9/11 and its perpetuators declared war upon another society. Simple. What I find both admirable and disturbing in America is the ability to debate itself but to a point where it becomes obsessive and eventually redundant and counter productive. Americans, from my observations, are indeed their worse enemy - but it's a good kind as they always strive to uphold the legacy of the forefathers. I'm not saying American democracy is under stress but don't let it downplay what lurks in your background. It's real. This is not hysteria but a reality of the times. That said, everything did change. The minute that plane hit I surmised that much. Global systems have always changed in world history from Rome onwards. World War I, for example, shattered the balance of power politics known as realpolitik in Europe (as designed in the Treaty of Westphalia in 1648) in the modern era. 9/11 was a similar turning point in world history. I enjoyed your sites and comments very much. They give us all something to ponder. It's refreshing to read true dissenting views that are thoughtful and well defended.

7:52 PM  
Blogger Tony Plank said...

Thanks. I hope you will visit often and become a part of the dialog.

12:37 AM  

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