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February 6, 2008

Jacob Sullum does a little prodding on those terrifying crises that are supposed to justify giving the government more spying powers.

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|2.6.08 @ 8:39AM|#

stuartl|2.6.08 @ 9:09AM|#

Even at this late date, it's not clear why FISA needs to be amended.

On another thread I pointed out in detail that the current FISA law is at best ambiguous in dealing with modern telecommunications. A telecoms person can easily interpret it to have many contradictory meanings. The example you cite, of foreign communications passing through US wires, is just one of many areas where FISA is useless at providing guidance.

While it makes sense to argue about what should be allowed in the law, it doesn't make sense to object to clarifying it.

A few months later, what had been impossible and then briefly possible became impossible again, supposedly because of a secret ruling by the Foreign Intelligence Surveillance Court. Acccording to the administration, a judge on the court interpreted FISA as requiring a warrant for surveillance of foreign-to-foreign communications that happen to pass through U.S. wires.

It is odd to attack the Bush administration for changing its actions after a judge tells them that their original interpretation is wrong. Isn't that what we want the government to do?

FWIW, as a telecoms guy I tend to agree with what is being reported as the administration's original interpretation, in that they are trying to match the original intent, but without details I do not know.

stuartl|2.6.08 @ 9:14AM|#

To clarify, I only specifically mean I agree with the reported interpretation for foreign communications passing over US wires. The originally intent seemed to allow monitoring of foreign communications when both ends are in foreign countries.

LarryA|2.6.08 @ 9:24AM|#

An administration ~~that cannot tell a consistent story in public about why it needs new extrajudicial surveillance powers~~ cannot be trusted to exercise those powers in secret.

I'd trim it to: An administration ~~that cannot tell a consistent story in public about why it needs new extrajudicial surveillance powers~~ cannot be trusted to exercise those powers ~~in secret~~.

|2.6.08 @ 9:33AM|#

Simplify, simplify!

[No] An administration ~~that~~ can~~not tell a consistent story in public about why it needs new extrajudicial surveillance powers cannot~~ be trusted ~~to exercise those powers in secret~~.

|2.6.08 @ 10:02AM|#

OT:

Today is Ronald Reagan's birthday.

ed|2.6.08 @ 10:18AM|#

Simplify, simplify!

I understand the comedic intent, but perhaps one reason libertarians continue to be marginalized is the greater public's perception of them (accurate or not) as paranoid anarchists? Who will listen (other than fellow travelers) when the refrain is always and without deviation: All government is always bad all the time.? Just a thought as we prepare to elect a president who will attempt to further expand the scope and reach of government, while the libertarian candidate struggles for 5% of the vote.

|2.6.08 @ 10:25AM|#

An administration that cannot tell a consistent story in public about why it needs new extrajudicial surveillance powers cannot be trusted to exercise those powers in secret.

Maybe we need to read between the lines.
How about "We want to eviscerate the 4th amendment. We'll be scaremongering with Islamofascist terrorist boogeymen until congress acquiesces"?

That underlying theme has been pretty consistent.

|2.6.08 @ 10:27AM|#

I think libertarians are marginalized because the government and the media misrepresent what libertarian philosophy is about also libertarians don't do enough to get the correct information out to the masses. Also you have lots of people who misrepresent themselves as libertarians. People who support government wars cannot possibly be libertarian. Pro-war libertarianism is a oxymoron.

|2.6.08 @ 10:32AM|#

All government is always bad all the time.

It is an reliable default position. Name one power granted to government that hasn't been misused. Often.

Just one.

IOW, you need a damned compelling case to give the government any power, because they will misuse it, reducing freedom at the first opportunity. Do you disagree with that sentiment?

I'm no anarchist, but distrust of the government is very important in my philosphy.

|2.6.08 @ 10:33AM|#

Would you want your driver to be somebody who hates cars?

Would you want your steak grilled by a vegan?

|2.6.08 @ 10:35AM|#

J sub D, name one freedom that hasn't been misused. Often. Just one.

IOW, you need a compelling case to give people any freedom, because they will misuse it...

You can do that with anything.

|2.6.08 @ 10:39AM|#

ed,

I understand the comedic intent, but perhaps one reason libertarians continue to be marginalized is the greater public's perception of them (accurate or not) as paranoid anarchists? Who will listen (other than fellow travelers) when the refrain is always and without deviation: All government is always bad all the time.? Just a thought as we prepare to elect a president who will attempt to further expand the scope and reach of government, while the libertarian candidate struggles for 5% of the vote.

Seriously, my point is that we should never trust government, not that all government is bad all of the time. Distrust of government is the cornerstone of our system.

|2.6.08 @ 10:40AM|#

joe,

Hardly an apt comparison. Government power to do bad things is somewhat greater than mine. Though I am a criminal jaywalker.

You'll never make it stick, copper!

|2.6.08 @ 10:41AM|#

People who support government wars cannot possibly be libertarian. Pro-war libertarianism is a oxymoron.

I believe that calls for a drink!

I would also note that this particular overbroad fatwa equates libertarianism with pacifism.

|2.6.08 @ 10:42AM|#

I'm no anarchist, but distrust of the government is very important in my philosphy.

A statement I believe every one of the Founders would have agreed with.

BakedPenguin|2.6.08 @ 10:43AM|#

Slippery slope, ed. Keep following that line of thinking and you wind up like Dondero, shilling for Giuliani or Romney, while bitching about "anarchists".

|2.6.08 @ 10:44AM|#

It's not a comparison, Pro Lib. It's a parallel meant to demonstrate the inadequacy of the original line of thinking.

And as a libertarian, you should recognize that the behavior of the private sector doesn't consist of "your" actions, but those of millions upon millions of people. So, no, on the abstract level where we're lumping "government" together into an indistinguishable mass vs "people" in a different undifferentiated mass, the ability of millions of people to exert power is not so different from the power of government.

|2.6.08 @ 10:45AM|#

Distrust of government is the cornerstone of our system.

A healthy and necessary distrust, based on an honest recognition of the temptations of power, and a practical understanding of how the government works. Wishful thinking is never a solid foundation for government policies.

|2.6.08 @ 10:46AM|#

joe,

It seems that as a general rule corporate bodies (and by corporate I do not necessarily mean corporations) have greater potential to create mischief than individuals alone do. Indeed, much (most?) of the whole "rights project" since its inception in the early modern period appears to have been an effort to curb the power of corporate bodies.

|2.6.08 @ 10:47AM|#

A statement I believe every one of the Founders would have agreed with.

And one they responded to, in the area of national defense and the government's security powers, by checking governmental power with MORE GOVERNMENTAL POWER - that is, the system of checks and balances that includes the Fourth Amendment's requirement that a government employee called a "judge" authorizes some other government employees to bring government power to bear against individuals, in accordance with laws passed by other government officials called "legislators."

|2.6.08 @ 10:54AM|#

R.C. Dean,

One of the more basic conflicts amongst the Founders was between those who wanted a moral order that would guarantee liberty (good leaders = liberty) and those who thought that the mechanics and institutions of government could do so (divided government, etc. = liberty).

|2.6.08 @ 10:54AM|#

Calidore,

I think your statement is too abstract to be of much help in actually understanding the world. "Government" - what government? Doing what? With what authority? These questions matter, and drawing a conclusion about a policy issue from a "rule of thumb" that doesn't take them into account isn't very useful.

|2.6.08 @ 10:58AM|#

joe,

Well, on a very practical level I think it in part illustrates why conflicts over the roles of corporate bodies exist.

|2.6.08 @ 11:02AM|#

There's an argument to be made that the population acting in concert is "government", whether or not its labeled such.

tarran|2.6.08 @ 11:04AM|#

And one they responded to, in the area of national defense and the government's security powers, by checking governmental power with MORE GOVERNMENTAL POWER - that is, the system of checks and balances that includes the Fourth Amendment's requirement that a government employee called a "judge" authorizes some other government employees to bring government power to bear against individuals, in accordance with laws passed by other government officials called "legislators."

Yep, and it worked out sooo well. I wish they had listened to Brutus.

"In a republic of such vast extent as the United-States, the legislature cannot attend to the various concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature, that would be continually arising.

In so extensive a republic, the great officers of government would soon become above the controul of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them. The trust committed to the executive offices, in a country of the extent of the United-States, must be various and of magnitude. The command of all the troops and navy of the republic, the appointment of officers, the power of pardoning offences, the collecting of all the public revenues, and the power of expending them, with a number of other powers, must be lodged and exercised in every state, in the hands of a few. When these are attended with great honor and emolument, as they always will be in large states, so as greatly to interest men to pursue them, and to be proper objects for ambitious and designing men, such men will be ever restless in their pursuit after them. They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power.

...

This power [the power to Tax], exercised without limitation, will introduce itself into every comer of the city, and country - It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!

|2.6.08 @ 11:05AM|#

And one they responded to, in the area of national defense and the government's security powers, by checking governmental power with MORE GOVERNMENTAL POWER - that is, the system of checks and balances that includes the Fourth Amendment's requirement that a government employee called a "judge" authorizes some other government employees to bring government power to bear against individuals, in accordance with laws passed by other government officials called "legislators."

And even with that check the 4th has been violated. The Bush administration wants to limit that check. The complaints that getting a warrant is too time-consuming or difficult is a fabrication that a reasonably intelligent 6th grader can see through.

IOW, No compelling reason to grant them the power exists.

tarran|2.6.08 @ 11:05AM|#

Stupid tags! the first paragraph is a quote of Joe. For everything after, imagine that it's outdented one level.

|2.6.08 @ 11:06AM|#

Sure, it can be a helpful conceptual tool for understanding what's happening.

|2.6.08 @ 11:06AM|#

Danged HTML tags.

|2.6.08 @ 11:08AM|#

I agree, J sub, the particular power to eavesdrop without warrants has no justification. The post-facto warrants allowed under FISA are already a huge concession.

|2.6.08 @ 11:11AM|#

J sub D,

joe knows your humiliation. Oh, yes, he does.

Leaving aside the Constitution and the balance of power, there are many practical advantages to having power distributed more heavily to the states (and local governments) than to the center. It's one of the advantages to a federal system, which, of course, we are rapidly discarding. I actually depart somewhat from the standard libertarian view of federalism in believing that the federal government should serve in some capacity as a check on state power (esp. concerning civil liberties).

|2.6.08 @ 11:12AM|#

And one they responded to, in the area of national defense and the government's security powers, by checking governmental power with MORE GOVERNMENTAL POWER

Actually, they responded not by creating more power, but by dividing that power among the branches and parceling out to the localities.

To take the classic example - the power to declare war. They didn't restrain the government's power to declare war by creating more government power to declare war (which is pretty much a non sequitur anyway), they did so by dividing the warmaking power of government between the President as Commander in Chief and the Congress as the sole body with the authority to declare war.

|2.6.08 @ 11:12AM|#

Pro Libertate,

It seems to me that as often as not the nexus here, the nub of the problem that is, is when some group or some corporate body, works in concert with a government - that's where things can become problematic (though not necessarily). This follows along in some ways with Hayek's concern over the potentially divisive nature of government.

|2.6.08 @ 11:14AM|#

Indeed. The close relationship between larger, entrenched industries and government enhances the power--and the abuses--of each. The problems in insurance and other such industries can be laid right at the feet of such bed sharing.

|2.6.08 @ 11:14AM|#

I actually depart somewhat from the standard libertarian view of federalism in believing that the federal government should serve in some capacity as a check on state power (esp. concerning civil liberties).

Actually, I thought that was the standard libertarian position on federalism.

Where libertarians get nervous is when the federal government gets out of the business of guaranteeing liberty as freedom from state control and into the business of treating liberty as entitlements.

|2.6.08 @ 11:20AM|#

R C Dean,

Perhaps you're right. I've been hearing a lot of objections to the 14th Amendment lately, without which the federal role in protecting civil liberties is much weaker. But I suppose that's not necessarily the mainstream of libertarian thought, to such an extent that we have any type of consensus.

|2.6.08 @ 11:22AM|#

Federalism is irrelevant to the questions raised by FISA reform and the wiretapping powers being sought by this president. I don't know why it was even brought up.

RC,

I could have phrased that better, the point I was making could just as well have been expressed as "...with other government power." We're not actually disagreeing here; I wasn't making a point about expanding power.

|2.6.08 @ 11:25AM|#

joe,

To the point, unchecked power is the problem. Just to illustrate how far out of whack we've gotten when the phrase "national security" is invoked, I actually took a National Security Law class in law school, with a whole book just on the topic. As you can imagine, it was a convoluted and disturbing mess, and the erosion of checks on power wielded under that rubric was distressing. And that was back in 1995!

|2.6.08 @ 12:06PM|#

Federalism is irrelevant to the questions raised by FISA reform and the wiretapping powers being sought by this president. I don't know why it was even brought up.

Probably because federalism is used to be part of our Constitutional scheme for restraining the State through separation of powers.

|2.6.08 @ 12:14PM|#

Just to illustrate how far out of whack we've gotten when the phrase "national security" is invoked ...

We know, we know.

|2.6.08 @ 12:25PM|#

RC, Pro Libertate,

Federalism has not been used to restrain the national government's use of its national defense powers, which is what wiretapping national security threats is.

That's just not what federalism does. It's helpful in restraining power in other areas, just not this one.

Treating "the State" as an amorphous blob is an impediment to clear thinking.

|2.6.08 @ 2:09PM|#

Federalism? I'm not talking about federalism. That was an aside. I'd say the state is working very hard to become your amorphous blob, which is one of the reasons all of our checks and balances are slowly breaking down. Including checks on presidential authority and, yes, including the checks the states used to provide on federal authority in general.

|2.6.08 @ 2:33PM|#

That's just not what federalism does. It's helpful in restraining power in other areas, just not this one.

I know, but you wondered how the issue got into the discussion here.

Treating "the State" as an amorphous blob is an impediment to clear thinking.

Sometimes, sure. But forgetting that all the divisions and levels of government are exercising fundamentally the same power of command and control over the citizenry is also an impediment to clear thinking.

|2.6.08 @ 2:53PM|#

Good thing nobody does that, then.

As opposed to lumping anything government-related together as a means of not thinking at all about the specifics of the situation, which happens quite frequently.

|2.6.08 @ 3:25PM|#

Come on, you do it. You love to do it. We all do it. You do it. . . .

|2.6.08 @ 3:59PM|#

"""Federalism has not been used to restrain the national government's use of its national defense powers, which is what wiretapping national security threats is."""

That's not true. It's beyond national security, that's just the guise to make the pill taste better. The wiretapping, or more to the point, the installation of Internet tapping equipment, gives government the unchecked ability to look at whatever they want on the Internet. How would you know otherwise? Who's watching the watchers? How does government really intend to use that equipment?

A short history lesson of the last seven yeara clearly demostrates they want to use this technology in every area they can, not just national security. Remember the P.A.T.R.I.O.T. Act was sold to us as being used against terrorist only. Not long after its approval, the DOJ started running siminars on how to apply that act to law enforcement.

The President said on national TV that the government was not mining data on its citizens. Shortly we found out they are, and the NSA said publicly that they want data from social websites such as MySpace and Facebook.

The government wants to change the definition of privacy to something complete different from its historical use. Someone from Homeland Security claimed that America needs to accept a this new definiton of privacy. Privacy by their standard is simply the protection of your data. My dictionary disagrees.

It's still about the Total Information Awareness program that is sooooooo important that when Congress refused to fund it, the administration simply changed the name and moved it to a different agency.

National security is what every tyrant has used to justify their means.

An important question for this generation is how much information is too much for the government to hold. If the answer is none, then our founding fathers experiment of the most excellent government is over.

"""As opposed to lumping anything government-related together as a means of not thinking at all about the specifics of the situation, which happens quite frequently."""

How can you argue specifics when the government won't give them to you?

|2.6.08 @ 4:17PM|#

Oh, I failed to mention that poker is a national security interests.
In case you have a short memory span (less than two days)
http://www.reason.com/blog/show/124806.html#comments

What's NOT a national security interest today.

REAL AMERICANS HANG THEIR LAUN|2.6.08 @ 4:27PM|#

YOU AMERICA HATERS WANT TO LET THE TERRORISTS JUST ROAM FREE TO BLOW UP MORE REAL AMERICANS WHAT ARE YOU AFRAID OF ONLY THE GUILTY HAVE REASON TO FEAR

What's NOT a national security interest today.

EXACTLY WE CAN NEVER KNOW WHAT INSIDIOUS PLOTS ARE BEING HATCHED TO POISON OUR WATER SUPPLY INDOCTRINATE OUR CHILDREN SPEAD DISEASES AND UNDERMINE OUR ECONOMY SO PEOPLE LIKE YOU THAT WANT TO BLAME AMERICA FIRST ARE SIMPLY MAKING IT EASIER FOR THE ENEMY TO WORK AMONG US UNIMPEDED I HOPE ONE DAY YOU PAY FOR YOUR TRAITOROUS ACTIONS AND JACK BAUER PUTS A HURT ON YOUR ASS

|2.6.08 @ 4:32PM|#

Spoken by someone who loves their right to privacy sooooooo much, they didn't enter a valid email address.

I'm I supose to do what you say, or what you do?

|2.6.08 @ 8:44PM|#

Tricky Vic,

I don't disagree with you. My point was just that the administration is pointing to the warmaking/national security powers of the federal government for their authorization, and there isn't anything federalism can do about that.

|2.7.08 @ 12:40PM|#

Well they are certainly pointing to powers they don't have, and claim they are written in places where they are not. Such as Bush claiming he has the authority to decide how the military will detain people which, in the Constitution, clearly goes to Congress.

I don't know if federalism can do anything about it, but Congress has the ability to do something about it, but they prefer to use it when a President gets a blow job. I guess an extramarital hummer is more of a threat to our liberties than unchecked domestic spying.