Friday, March 10, 2006

Get the Goods

"A nation of sheep will beget a government of wolves" --Edward R. Murrow

Let's see, here's what I'm getting out of this whole NSA thing:

If I've got nothing to hide, then I don't mind the government checking up now and then on my phone conversations or email. In case I'm in on some terror plot that wouldn't have been uncovered - Praise the NSA! - without the president's power to poke around some. Despite all the noise about whether Bush broke the law or not (he did), no one is asking the basic question: What's so bad about that?

If you want to be safe, then just get over it, your Bill of Rights that is. It's a new 9/11 World. Why eavesdrop without warrants? To catch terrorists. Why can't we talk about it? It might tip-off the terrorists.

My contention is, that explanation alone should be enough to get the Bushies run out of town. Haven't we been debating the Patriot Act for 4 years, and issues like whether a tap should follow a cellphone? Alberto Gonzalez said that working with a judge "could possibly tip off a member of Al Qaida or someone working with Al Qaida." What gets me isn't that these guys say these things. It's that they say them with a straight face.

Senators will stand on the floor of the senate reading a list of names and numbers we are listening in on. Better yet, CSPAN will run a ticker tape along the bottom of the screen with the names of suspected terrorists. Egads, Abdul! Get off the phone! We're being tapped!

I feel like Bugs Bunny whispering to Elmer Fudd. Psst! Alberto! I think those scwewy terrorists know we do wiretaps!

How many times can the Bushies call us just plain stupid to our faces and get away with it? I'd give anything, ANYTHING, to be a fly on the wall when Karl Rover and the gang are having a few pops and a good laugh over how the reporters just lapped it up without even asking these questions. My sides would be hurting too if I'd have done it.

But to answer the original question, about why even have laws that hamstring the government's ability to poke into your lives, it goes back to the Founders' basic distrust of people, and of people in power most of all. They thought that, even more fearsome than the criminals the government chases around, was when the criminals WERE the government. They reasoned that guys with guns running around killing people could only do so much damage, but guys with an army to order around, unlimited resources, long reach, and the law on their side could do untold damage for a long, long time. The British "General Warrant," by which king's men could go through anything of yours, anytime, with only general suspicion as an explanation, enraged the colonists and was one of the causes of the American Revolution.

The Bill of Rights doctrine of Probable Cause was meant to stop baseless "fishing expeditions," that is, looking for something you could send someone to jail for, so you could, let's say, take over his business. Or his wife. Boy, those Founders thought people could be pretty crummy. Good thing the Post 9/11 World changed all that.

Now we can trust bureaucrats with armies at their disposal to always do the Right Thing. Just protect us, and never get tempted by anything else. Temptation, dirty dealing, blackmail, greed, and lust for whatever are things of the past, and if you don't think so, you're a conspiracy nut. Like those Founding Fathers.

Besides explanations like Gonzalez's (hey I'm Hispanic too, can I get a race-change operation? This is embarrassing...) the False Choice set up by Bush (a favorite tactic) says it all. THEY don't want us to have the power to snoop, quickly and efficiently. WE know there are terrorists out there who want to hurt us, so we need it. But Bush ALREADY has the power to snoop, immediately and without a warrant, and under a recent senate compromise now has 45 days to get the warrant. What he wants, REALLY wants, is the power to not have to tell ANYONE, EVER, about a given tap or records search. The Senate "compromise" allows the administration to cite "national security" in the event of an, er, delicate search. Boy that New York Times reporter turned out to be a real pervert! Women everywhere and his wife a DNC bigshot! Don't worry, he won't be bothering us much longer.

It isn't all that hard to show probable cause for a search, and the body of law behind it is amazingly evolved and nuanced. A cop cannot open your trunk on a routine traffic stop just because he thinks you are a wise-ass. If he does and he finds drugs, a conviction can be thrown out on grounds that the search was illegal. The idea is that the crime itself is not as bad as the manner in which it was uncovered, by someone with a badge and a gun whose commands you must follow or he might shoot you, and maybe get away with it.

But if the cop sees pot seeds on the dashboard, or blood on the car floor, then he has probable cause. The bottom line is there has to be a plausible reason, which someone in a separate branch of government can check and review. Bush protested that his illegal NSA survielllance was reviewed, checked, and checked again by Justice Department or other internal lawyers. That doesn't count, because they all answer to the same man. This is the bottom line Bush wants to change, with a radical, utterly brazen, and utterly wrong legal argument. I did it because I was authorized to use force. And eavesdropping is part of warfare.

It is wrong because the Constitution is quite explicit on the roles of the different branches in time of war. It makes the president the "commander-in-chief" of of the Army and Navy," but specifically empowers Congress to "make rules for the government and regulation of the land and naval forces."

-It's called an AUDIT

So here you are rolling merrily along protecting the American People, data-mining 2 million conversations a day for key words like "Semtex," "Al Qaeda," "lawsuits," and "travel to Pakistan." (Hey, terrorists get sued like everyone else.) How do you make sure no abuses are happening? Well, if an audit court were in place, it might see the added search term "512 East 12th St." which is an address of some pesky San Jose Mercury News reporter, doing a story on the next Watergate. And a judge might ask, how did that get in there? What have "lawsuits" and "East 12th St." got to do with each other? Especially since I drink with the guy?

Admiral Bobby Inman, the first director of the NSA, said that the law could include "audit" capability. That's right, poly-ticians, a CHECK. The government probably won't get caught, since there is so much data. But they might. Which might cool the jets a little of your typical ass-licker bureaucrat eager to get in good with the next Secretary of State, and is willing to bend a few rules to get the dirt on his boss's enemies. Or on a particularly eloquent political protester.

Once you accept the premise that unlimited general surveillance makes us safer, you have renounced the Founders' carefully considered, studied, and thought-out views on human beings and society. Classical and Enlightenment scholars to a man, they read Greek, Latin, French, German, and devoured more thick books in a year than George Bush has in a lifetime. Terrorism? They lived through an enormously bloody 10-year revolution, the carnage of Napoleonic wars in which jealous and greedy princes burned fields, huts, and the peasants caught inside them just to make a point, lived in a time of intrigues in which you would kill your own brother or father to solidify your position in the castle, through battles in which 15-year-old boys were press-ganged into front lines to be cut in half by chain shot. What did they know about the way the world works? What did they know about forming a good government?

That's passe, pardner. It's 9/11 now, baby. Gimme a line of that blow.

"The Fourth Amendment has two clauses. The first states that people have a right to be protected from unreasonable searches and seizures, and the second states that no warrant shall issue except upon probable cause. The roots of the second clause -- the probable cause requirement -- lie in English and American colonial history. Prior to the framing of our Constitution by the founding fathers, the government had virtually unlimited power to believe, right or wrong, that any illegal items they were looking for would be found. In England, this all-purpose power took the form of what were called general warrants; in colonial America, they were called writs of assistance. To protect against the abuses inherent in this kind of power, the Framers added a probable cause requirement...."



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