Wednesday, June 04, 2008

Warrantless Wiretapping, Revisited

Name that country:
The law allows security forces to gather evidence through surveillance methods such as wiretapping without obtaining a court order, and authorities can withhold evidence from defence lawyers if it is considered to be in the interest of national security.
The answer: Venezuela.

OK, I don't want to go into a full-blown reductio al Chavezem here, but I do have this to say to Bush and the Republicans: if Hurricane Hugo is getting ideas on how to consolidate power from you, shouldn't you be just a little bit concerned?

One last note: I was watching McCain's speech last night, and I can't help but notice that every time he delivers an attack line he grins ridiculously - you can imagine him thinking "hee hee, I'm a bad boy." It's not a reason to vote for or against the man - it's just funny.

20 comments:

Andy said...

We hit on this a little in the Barr blog. While there are similarities between what Chavez is doing with wiretapping and certain aspects of our own Patriot Act, I certainly trust the U.S. government more than I trust Chavez's government to do the right thing with the information. You might say it's naive, but I don't hear too many stories of "innocent" Americans being done in by wiretapping while I would surmise every citizen of Venezuela could give you an example of Chavez's evilness. If they weren't afraid of being shot.

What disturbs me more about your blog today is this: "if Hurricane Hugo is getting ideas on how to consolidate power from you, shouldn't you be just a little bit concerned?" This is a big issue I have with the Left (and Jeff gets to be their surrogate today). How every little thing in the world has to be reduced to George W -- it's like they're fascinated with the man. Seriously Jeff, re-read your blog -- horrible dictator in South America wiretaps his enemies (which could be a great post itself) so let me bring up Bush, even though we all know he would never do anything so devious. You would think as much as liberals talk about W, they were getting paid to do so. Mugabe imprisons his enemies -- you know who else has prisons? Bush. Kim Jong-Il makes nukes, damn that's just like Bush. Iran bought a gun from Russia -- must be because Bush like hunting. Cat took a dump on your car hood, probably Bush's fault. To all liberals: Get the f*ck over W. You give him a helluva lot more credit than conservatives do.

-Dave said...

The flip-side of this, of course, is Maxine Waters suggesting to oil company executives at their latest parade through Washington that if prices don't come down - despite Congress's refusal to pursue the means to accomplish this - that she would be in favor of the government simply taking over the oil industry.

Chavez might want to imitate a Bush Policy. But I'd say it's even more embarassing for a Democrat to suggest imitating a Chavez/Mugabe policy. Forced seizure and redistribution is a sure long-term path to poverty.

Jeff said...

Andy, I can smell the straw from here.

My problem with Bush and the Right is that they put too much trust in the office of the executive. Sure, Bush has demonstrated that he can be trusted to not screw with innocents - but he's not going to be President forever. Neither will Obama/McCain (neither of whom seem the sort to abuse the power). I'm just not sure I can trust the unknowns who might be coming down the line. What happens if we have a collective brain-fart and elect a ruthless power-grabber like Chavez? That law comes back and bites us all in the collective ass, that's what happens.

The entire point of having checks on executive power is to limit the amount of evil that can potentially be done by the occupant of the White House, whoever that may be. You can't picture Bush abusing the power - that's fine. But you can definitely picture Nixon or J. Edgar Hoover or Joe McCarthy abusing it, and that's why it shouldn't exist. Just because executive power can be used for good doesn't mean we can ignore the very real possibility that it can be used for evil, like Chavez is doing. And the fact that a ruthless dictator is taking powers we have given our executive is something we should be worried about.

The second half of your second paragraph isn't even worth responding to. Seriously, dude, you can argue better than that.

Dave - yeah, that's just as crazy.

Matthew B. Novak said...

Here's a crazy theory. Maybe we can use our wireless warrant-tapping to spy on oil executives and catch them in the act of scamming American consumers.

Ben said...

Wireless Warrant-tapping? Would that be where you use wireless internet technology to secretly read someone's search warrant? :P

Andy said...

Straw man? YAWN, you're like a one-note record lately, straw, straw, straw.

Let me put this as bluntly as I can, your argument is (and I'll quote you to keep it fun): "Sure, Bush has demonstrated that he can be trusted to not screw with innocents" and "I do have this to say to Bush and the Republicans: if Hurricane Hugo is getting ideas on how to consolidate power from you, shouldn't you be just a little bit concerned?"

Ok, so is it the idea that's evil or the man who wields it? Bush has shown (you said so yourself) that the idea of wiretapping can be used perfectly fine but Chavez shows it can wielded for evil. Thus, it's not the idea, it's the man. My point again (since you always have to repeat with liberals): why bring up Bush? Why not write a perfectly fine blog about how an evil dictator is wiretapping? Because liberals have to bring up Bush, it's in their makeup. Maybe if they don't curse Bush six times a day while facing DC, they suffer the anger of their secular god.

Finally, the last part: "And the fact that a ruthless dictator is taking powers we have given our executive is something we should be worried about." WHY? Why should we be worried? If we elect decent candidates for president, we have nothing to worry about. As you say yourself, Bush is proof of this. This goes to the second part of my argument which you dismissed because it doesn't fit your agenda: Bush's administration has prisons just like Mugabes, has an army just like Iran and other countries, has nuclear power like South Korea, but does he use them for evil? No.

Is that a good enough argument for you?

Ben said...

The reason Jeff brings up the straw man argument repeatedly is that you use it repeatedly. You are perfectly free to ignore someone's arguments, substitute a transparently weak argument, rebut the transparently weak argument, and claim victory. But you can't do that and expect not to get called out for making a straw man argument. Because that's what it is.

And Jeff has already answered plainly why we should be worried about the expansion of executive power. Once the power has been expanded, it rarely fades away. It remains for good and bad people to use. It's for precisely this reason that the Founding Fathers were so careful to circumscribe the powers of the Executive....and that's when the knew the president would be George Washington, a man they all trusted. It is absolutely no defense to say that the person currently in office is a good man. First off, he has many, many subordinates in the Executive branch and not all of them will be good. Second, not all of America's presidents in the past were good men. Why should we assume they will be in the future?

The point is, "trust me" has never been the American way when it comes to the powers of government. I close by citing the wisdom of the Founding Fathers regarding this point:

"If men were angels, no government would be necessary. If angels were to government, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is , no doubt, the primary control on the government; but experience has taught mankind the necessity of auxilary precautions."

- James Madison, Federalist No. 51
(Note especially that last clause.)

Ben said...

That should say "if angels were to govern men"

Andy said...

So according to you, Ben, quoting the guy you're arguing against (as I have done) is to "ignore someone's argument". Wow.

From a dictionary, a straw man is "a fabricated or conveniently weak or innocuous person, object, matter, etc., used as a seeming adversary or argument." At what point did I fabricate the argument? I used Jeff's words. He said Chavez is doing the same thing Bush does, implying Bush must be evil. I said it's not the act that's evil, it's the person. He said, ok, maybe Bush hasn't done anything YET, but the next guy will. I say, how do we know? You respond by bringing up the Founding Fathers being fearful of ceding power to executive branch. Ok, fine, but how much experience do you think the FF had with wiretapping?

Look, I'm as Constitutionalist as the next guy but James F*ckin' Madison never thought there'd be a guy in Saudi Arabia who would hate America and Freedom so much that he and 18 of his friends would climb into a plane (didn't exist), fly that plane into a skyscraper (didn't exist) and the Pentagon (didn't exist), meanwhile spreading their evil propoganda through phones (didn't exist) or the internet (didn't exist). Times change, quoting the Federalist Papers (as much as I love them) has no point here; the FF and the Constitution didn't prepare us for everything that exists in 2008. It's in this regard that I wish Liberals would think outside the box every once in a while. You can either trust our government to keep us safe OR (the biggest 'or' I can make) you can handcuff the government from protecting you and 100% absolutely trust your enemies to try and blow you up. But they would never do that, would they?

Mike said...

Amid the usual paranoid "omigod 9/11" rantings, Andy has made a valid point: Chavez would be wiretapping people without warrants regardless of whether the Bush White House were engaging in the same activity. The suggestion that he "got the idea from" the Bush administration seems pretty dubious to me.

I still argue that if we betray our Constitution and our ideals in the name of the illusion of security then the terrorists have already won.

Matthew B. Novak said...

Ben:

Oops.

Ben said...

Mike: Good point. It's doubtful that Chavez saw Bush's policy and thought "what a great idea!" So, to the extent Andy was making that argument, I'll concede that's a good point, too. That was poor wording on Jeff's part.

Having said that....

Andy: Yeah, I'll admit it's hard to quote part of someone's argument and then willfully misunderstand it, but you're demonstrating a particular genius for it.

Jeff did NOT argue the following: "Chavez is wiretapping without a warrant. Bush is wiretapping without a warrant. Therefore, Bush is evil like Chavez."...or any other attempt at moral equivalence between the two. Jeff DID argue the following: "The fact that the President Bush is using a policy favored by dictators like Chavez is cause for concern."

He went on to explain why: you cannot trust to the simple goodness of whoever is in office to wield such power wisely without oversight/checks and balances. The entire history of human nature teaches otherwise. Or let's put it this way. You trust President Bush with the power to listen in on people without any oversight. Do you trust every single federal agent who works under Bush? Not a single bad apple in the bunch? Or how about this: Would you trust a President Obama - for whom you have ample contempt - with such a power? Or take some political figure you despise even more....would you trust a President Olbermann with such a power?

The fact that trust alone is not sufficient to ensure a functional, non-oppressive government is one of the key insights of the American system of government. And the system of checks and balances created in the Constitution based on that insight is one of the great features of the American system.

As for your historical argument...okay, so James Madison didn't have to face terrorists. (Actually, even that's debatable, given the Barbary Pirates - also Islamic extremists. But they didn't attack the homeland, so I'll not insist on that point.) But here's something he was familiar with: the constant threat of foreign invasion. Hell, IT HAPPENED DURING HIS TERM! Maybe you've heard of it. It's called the War of 1812. Washington, DC itself was ransacked. The White House was burned. The war very nearly made America a British colony again. Al Qaeda may have killed thousands of people and struck a terrible blow to the American sense of security, but - unlike the 19th Century British Army - it has not come close to destroying the very existence of America is a nation. So, no, the Founding Fathers were not familiar with airplanes or skyscrapers. But they were intimately familiar with threats to national security. They were not naive about it. But neither were they naive about the threats of unbridled executive power. Times change. Human nature doesn't.

As for the Big Or with which you end your last comment: "You can either trust our government to keep us safe OR you can handcuff the government from protecting you and 100% absolutely trust your enemies to try and blow you up." You offer a false choice. In fact, those are NOT (biggest "not" I can make) the only two options. Instead, you do the 3rd way, the way of the Constitution and the Founding Fathers: you give the powers that are necessary under the circumstances to protect America....but you also watch the watchman. You have oversight to prevent abuse of that power. Nobody is actually arguing that the government should not spy on terrorists. But there should be a check/an oversight on that power so that it does not slide into misuse a la J. Edgar Hoover spying on Martin Luther King. And that check is warrants - warrants created by a secret court which has a lower standard of probable cause than criminal courts AND which (under the original form of FISA which I believe is once again in place since Congress didn't renew President Bush's wiretapping system) allows for after-the-fact warrants up to 3 days later! Just so long as SOMEBODY is watching the watchman.

Matt: Hey, Wireless Warrant-tapping would at least be a good name for a rock album.

Andy said...

Ben, let me stop your rant after the fourth paragraph:

"Mike: Good point. It's doubtful that Chavez saw Bush's policy and thought "what a great idea!" So, to the extent Andy was making that argument, I'll concede that's a good point, too. That was poor wording on Jeff's part." I completely disagree. It wasn't poor wording on Jeff's part, I would contend it was Jeff's point. He can try to spin it after-the-fact but here's what he wrote in the original blog: "if Hurricane Hugo is getting ideas on how to consolidate power from you..." Jeff is writing, Chavez picked up something from Bush and if you try to say otherwise, you are 100% lying; it's right there in the text.

In the fourth paragraph, you wrote: "Jeff did NOT argue the following: "Chavez is wiretapping without a warrant. Bush is wiretapping without a warrant. Therefore, Bush is evil like Chavez."...or any other attempt at moral equivalence between the two" Originally, yes he did. I don't believe for a second when he called Chavez "Hurricane Hugo" that Jeff was equating Bush to a nice guy. He was equating Bush to a crazy dictator or, as Jeff would later write, "a ruthless power-grabber".

It seems this argument comes from the fact that you want to support Jeff but you don't want to stand behind the original statement which was Chavez (a ruthless power-grabber) is getting ideas from our president. Most likely, Ben, it's because you don't agree when Jeff wrote that so why not tell Jeff that like I did? Why take four responses before you give the tepid "Yeah, I guess Andy was making a decent point." I think you're a logical person (as a lawyer, I would hope you are) so why did it take so long to call semi-bullshit on Jeff when I could see it right at the start? Jeff can try to nuance after-the-fact but we can all read what he wrote originally.

Now if Jeff himself would like to clarify, that would be something (in a wierd Hamilton-Burr way though, it's like we're arguing sans Jefferson). But at no point in his one rebuttal did he say, "Yeah, I didn't mean to put it like that." Instead, he wrote this in his rebuttal, "You can't picture Bush abusing the power - that's fine.", implying Yep, I meant to equate Bush to Chavez and our (Jeff and myself) difference lies in whether we consider Bush evil.

Andy said...

Ben, I'll address the second part of your post in this response.

I still contend that what the Founding Fathers faced, while in the most general sense "terrorism", was nothing like our situation. I am more than familiar with The War of 1812 (the war that actually gave us our independence from Britain). I consider Dolley Madison staying behind to safe-keep the Gilbert Stuart painting of Washington as the Brits marched toward the White House one of THE most self-less acts in the history of the United States. (When I stood in DC in front of the painting in the art museum, I unabashedly wept.)

Information did not move during those days as it does today. Were Bush to monitor the mail system and letter-carriers, would that catch terrorists plotting? Certainly, no. He needs the power to watch the internet, to watch phone calls in and out of the country. You and I agree that this is necessary but you feel the President's office should be required a warrant for each search (here, I surmise, you mean as this relates to Katz v US). The problem is, as has been pointed out by others, United States v. Verdugo-Urquidez meant non-citizens were not protected by the 1st and 4th amendments, so concievably Bush can wiretap these people all day long. So the trouble lies in, how do you wiretap the guy in Syria calling his cousin in Florida (who might be a citizen)? Maybe the Supreme Court could rule on this.

In any case, at some point more than likely, somebody will need to be 'unwatched'. You want the President to be watched by Congress? But who watches Congress to ensure they issue warrants when they're clearly warranted? An oversight committee? Who watches them? At some point, you have to have a little faith in your government.

Jeff said...

Andy, don't be an idiot. I didn't equate Bush and Chavez. I did say that Chavez was getting ideas from Bush, and that's probably not true, so good point there. But to say I drew some sort of moral equivalence between the two... that's called "making shit up." Please show me where I set the two up in moral equivalence. Oh, that's right, you can't. Point over. On to the real argument here.

It'd be nice if the Court would rule on that issue, but it seems to me that any communication involving a citizen would be governed by FISA, so it would require a warrant.

Incidentally, the judiciary watches over Congress to make sure they don't run afoul of the Constitution/prevent the President from executing the laws and exercising his powers.

Whatever. Andy and Ben, y'all argue this point, you're clearly more qualified than me.

Andy said...

Hey, Jefferson's back.

For the record, IMHO you did try to make a moral equivalence between Bush and Chavez. I've stated this before so I won't rehash the points here. Maybe the most impressive part of your pivot though might be when you tried to deflect the criticism that now myself, Mike and Ben have aimed at you (the Bush-Chavez connection is dubious) by saying well, maybe I didn't mean Bush but boy you could see Nixon doing it.

So instead you equate the guy credited with uncovering the Pumpkin Papers, the first president to visit Russia and China, the president who got us out of Kennedy's Vietnam mess, created the EPA and OSHA, this guy you (b/c of Watergate I presume) equate to Chavez. Chavez who has stolen elections, nationalize anything he could, crushed human rights and free speech, supported terrorists and allowed crime to spread rampant through Caracas. How can you look at those two people and see the same abuse of power?

Jeff said...

For the record, IMHO you did try to make a moral equivalence between Bush and Chavez.

That's not open to opinion. I didn't do it. End of story.

As for the Nixon thing - are you trying to tell me he didn't abuse wiretaps? Sure, he didn't do it to the same extent as Chavez, but he did abuse wiretapping privileges. Hell, we actually did, at one point, trust our President to use wiretapping wisely. Then Nixon came along... now his wiretapping ridiculousness are the entire reason FISA exists!

Nixon demonstrates that we can't trust all elected officials to use their power wisely, so we have to diffuse power as much as we possibly can.

Ben said...

If Jeff's Jefferson, and Andy and I are Hamilton and Burr....which is which? While I admire Hamilton a lot more than the scheming, unprincipled Burr (who...speaking of untrustworthy people in the Oval Office....came within a hairsbreadth of becoming President instead of Jefferson), I think I'd prefer to be Burr. Better that I get to be the guy that does the killing.

Jeff said...

Ben - but don't you want your face on the 20? Burr doesn't have his face anywhere, except perhaps at the bottom of a urinal somewhere...

Mike said...

Having something to aim at reduces the chance of spillage... or so I'm told...

Incidentally, who am I? Can I be Ben Franklin? Old, lecherous, essentially there for comic relief? At least that's what I learned about him from watching "1776"...