Protecting Rights and Fighting Terrorism

In a comment on her blog, Laura of Pursuing Holiness drew my attention to this story in the New York Times about the posse comitatus and related material about the insurrection act of 1807.

First let me note that I consider the posse comitatus to be a good idea, but my primary point in posting about it is not to argue that point. Go ahead and read the article and study that one out for yourself.

But the thing that worries me primarily about all of these actions is the way that we allow freedoms to be eroded without due consideration in the face of danger. There is a strong potential for trouble in both directions. If those on the libertarian side simply argue in favor of civil liberties without looking at safety issues, then eventually safety concerns will get out of hand, and popular support for certain stronger–and potentially dangerous–measures will continue to grow. We’d like to think that we can somehow get the people of the country to stand on principle though the heavens fall, but in reality, many people will give up a great deal of freedom in exchange for security.

Amongst those who are not so libertarian (and there are people in both these groups on the left and the right), there is often a tendency to take hold of any rule that looks like it makes the law tougher and imagine that it will, in fact, increase safety. That is also very dangerous. If you pass a tough law, and safety doesn’t result, then there’s an automatic drive to get tougher and tougher until it works. I think this is part of the reasonw why we have in the United States one of the toughest criminal justice systems in the free world, and yet we also have one of the highest crime rates.

The question, I think, is one of effectiveness. We are coming to believe our own spin. If someone on TV says that a certain action will improve our security enough times, then we become convinced that it will. If a law has a title like “Law to Increase the Security of Air Travel” or “Law to Make Everyone Smarter” we assume that each law will accomplish its goal. But when we look into those laws we may find that very little of the bill actually has to do with the topic.

One way these things happen is when various projects are offered to particular districts in order to secure votes on some other issue. Such things are happening right now in the Iraq war vote, as Laura notes in another post. (You can follow her links to the source stories.) You might like to think that primarily your congressman is deciding whether to support or oppose a bill on principle, but that is often not the case. Why are congressmen susceptible to such pressure? Primarily because that’s what we, the people, will vote for. The key to having a strong hold on your district is bringing home the bacon, or to be more direct, the pork.

Now I went on that detour to make this point: Because of this complex system of dealing, and because bills are often passed with many unrleated provisions attached, it is very difficult to tell in detail just what a congressman supports. Voters guides can often be accused of partisanship precisely because they have to pick and choose so carefully. John Kerry got on the wrong side of this one with his “I voted for it before I voted against it” issue on body armor. The issue gets very tangled because of the combinations of provisions.

It was in just such a way that the provisions that weaken civil liberties in a dangerous way were tucked into a defense appropriations bill, and passed without making congressmen stand up and be counted on the specific issue. Even opponents sometimes give up on such amendments, letting them ride through because you don’t want to hold up a big bill such as defense appropriations over a minor issue. But we elect our congressmen to do just that kind of watching.

One of the reforms that I support in connection with this issue is the Read the Bills Act (RTBA). You can find a good blog post on the reason for this bill and its intent here. This is not my central point, although it would make it considerably easier to do the things I’m about to suggest. (Hat tip on the prior post to Dispatches from the Culture Wars.

But at a minimum we need to ask with each change just what is being accomplished by that change and what the side-effects can be. For example, when the Republican led senate considered reducing the power of the filibuster in order to allow up and down votes on certain judicial nominations, I was generally in favor of the goal, specifically the up/down votes, not the particular candidates. But the method by which it would be attained could be much more dangerous than the ill it was intended to solve. If we had a Democratic president, and a Republican senate minority, we would certainly hear the arguments the other way around.

So while I think the current method tends to produce judges who are mediocre, and often prevents us from getting the best legal minds on the left or the right onto the Supreme Court, the alternative looks even more dangerous to me. (I really liked the West Wing episode in which they appointed one liberal and one conservative, keeping the balance, but avoiding having only largely unpublished judges.)

When we have a Republican president, the Democrats favor more congressional power, and when the president is a Democrat, the Republicans favor congressional power. But the fact is that there is a division of power in the government, and we, as voters, need to protect that. Unfortunately when we have a pet cause, we are quite willing to cheat on the process in order to accomplish our goal.

So what does this have to do with fighting terrorism? Well, I’m rambling around the issue, but here’s a major problem, I think. We have those on the right too often supporting every new law enforcement provision because it will make us safer, and those on the left too often opposing all options for law enforcement because they will erode our civil rights. As a result, I’m afraid we may end up with neither more effective law enforcement nor effective counter-terrorism.

Take as an example monitoring telephone conversations without a warrant. Is it useful for law enforcement to be able to listen to conversations between people in the United States and overseas under some circumstances? Certainly. How often is that an emergency that prevents getting a warrant? I doubt it is as often as is claimed, but I would imagine there would be emergency situations. Can we possibly find a way to have real accountability on such a process so that we can monitor when we need to, but protect ourselves from bungling such as has been seen recently from the FBI on national security letters? I would think that if the various parties sat down with the intent to solve the problem, arrangements could be made. But then what would happen to the political issue? We’d have solved that particular problem and nobody could justifiably accuse one another of anything–a truly sad day for the politicians.

With these provisions related to posse comitatus, I would again ask the question: Just how much did the lack of such provisions slow down relief after hurricanes like Ivan, Dennis, Katrina, and several others? I would suggest that it is simply the reflex response of a bureaucracy to request more power and more money as the result of problems. “If we had only had more authority to order people around and more money to spend, we could have solved it,” they say. Frightened people take their word for it too much of the time. I really doubt that more power for the feds was the right answer. (This is not to let state governments off, though I am quite happy with my local government in Escambia County, FL on this one point, and the Florida state government in general. What happened in Louisiana simply boggles the mind, and I think a lot of people should definitely lose their jobs. I bet some of the won’t, however.)

All of what I’m suggesting here would require us each to spend a bit more time finding out what our various representatives in government are doing. To summarize:

• Look at the content of bills ourselves. Don’t support or oppose them simply based on the title.
• Hold representatives accountable by voting against them if they fail in their duty.
• Be aware of the process and not just the goal. Changing the process to accomplish something good one time, can allow something very bad the next.
• Always consider priorities; even good things can be put into a hierarchy. Ask yourself, “If I could do only one of these things, which would it be?”
• Always consider resources. Something can be good, but resources might not be available for it.
• Always consider the long term.