TCS Daily

Quiz Show

By Max Borders - January 6, 2006 12:00 AM

Over at Reason Online, Matt Welch challenges his pro-war on terror libertarian friends to take his specially designed libertarian quiz. (Note: all of Welch's answers to his own questions are "no.") I have taken up his challenge and humored him with some answers. Let it be known in advance, however, that I do not altogether approve of either the questions or the format. But for the sake of starting important conversations, here are my tentative answers:

1) Should the National Security Agency or CIA have the ability to monitor domestic phone calls or e-mails without obtaining judicial approval?

Yes. (Or should I say "it depends.") Some of this issue involves intimate libertarian concerns about sacrificing certain rights for security (i.e. other rights). But some of it doesn't. I think a lot comes down to how the Fourth Amendment is to be interpreted in light of technological tools. Michael Rosen says it well in the TCS article "Tapping Our Common Sense":

"[I]t seems fair to assume that the National Security Agency engaged in some combination of data mining of communications data (phone numbers, email addresses, etc.) and electronic recording of communicative content (phone calls, emails, etc.). The NSA then likely aggregated and sifted this information -- probably through pattern recognition computer software -- and more carefully scrutinized the resulting nuggets. This "funnel approach" provides the only convincing explanation for why the Administration did not, for the most part, apply retroactively for warrants under the Foreign Intelligence Surveillance Act, since probable cause for the wiretaps became apparent only after the wide net had been cast and the useless information discarded."

I grant that some true-blue libertarians are going to be spiritually disturbed by the implications of the government filtering electronic correspondence. I am too. But being equally disturbed by the idea that "Allah -- Dirty -- 18th St NW -- Akbar -- Bomb -- tomorrow" (or something less obvious) goes unfiltered is at least equally disturbing. I grant that the probability of my office in DC being attacked by terrorists is very low. But it is equally improbable that, via sophisticated data-filtering technologies, they'll haul me or Matt Welch in for crimes against the state. Instead of simply taking away the instruments of national security for the sake of some fuzzily drawn Patrick Henry purity, maybe we could at least talk about what appropriate safeguards against government abuse might be.

2) Should the government have the ability to hold an American citizen without charge, indefinitely, without access to a lawyer, if he is believed to be part of a terrorist cell?

No. The Supreme Court had some wisdom in checking this power. Belief is not enough. Evidence presented at trial -- decided by a jury -- must be the way. And let me say that my answer would be completely different if the term "citizen" weren't in the question - specifically, I refer to those designated as "enemy combatants." Which leads me to a further caveat: If it can be proven to an appropriately appointed magistrate that the person in question abnegated his citizenship by taking on the "colors" as it were, of another organization or country, then the protections enjoyed by a citizen should be tossed.

3) Can you imagine a situation in which the government would be justified in waterboarding an American citizen?

Yes. As long as we're using unspecific hypotheticals (which is part of the problem with this whole exercise) consider this one: Imagine you're a cop. You see a man with his hand in his coat standing behind a women yelling: "I'm gonna kill her." Wouldn't you be justified in using lethal force? Of course. Likewise, if a citizen threatens to blow up a school, wouldn't you be justified in using waterboarding to prevent it? Once the citizen has made a threat to kill someone else, he has abnegated his rights as a citizen -- and the degree to which he is harmed will depend on how imminent the threat is. There would be nothing particularly libertarian about sparing the assailant's life in the first case. Neither would there be in the second. In fact, when we compare the action in the two cases, waterboarding is more humane than killing (better traumatized than dead). But the relative humanity doesn't dictate the course of action. The nature of the threat does.

Now, if you are going to inject some more obscure and detailed hypothetical about how the citizen doesn't actually make the threat, but is suspected of something -- then we need to talk about those details.

4) Are there American journalists who should be investigated for possible treason? Should Sedition laws be re-introduced?

(This is actually two questions.) #1 Yes. #2 No.

In the first case, we can easily imagine an embedded journalist with the 3rd Infantry Division willfully giving away military information to the enemy. This journalist -- constitutionally speaking -- is a traitor. And said journalist should be investigated, tried, and punished as such. What in the world would be libertarian about saying otherwise?

In the second case, sedition laws, where sedition amounts to "speaking against the US government" or some such, is clearly not justifiable. Hell most of us speak against the government all the time. (Watch this: "The government sucks in so many ways I've run out of fingers and toes.")

5) Should the CIA be able to legally assassinate people in countries with which the U.S. is not at war?

Yes. Why not? Taking out Saddam Hussein might have prevented a war. And I highly doubt there is actual reciprocity in this so-called non-assassination treaty signed by Jimmy Carter. There are lots of people who would take out W if they could get him in the crosshairs. I've never understood this fetish. And forgive my want of background knowledge, but under what libertarian construct does this policy function? Human rights? (In the immortal words of John Stossel: give me a break.) Now, if one were to provide some firm, specific, pragmatic reasons why the CIA shouldn't assassinate in specific cases -- that's a very different matter.

We at TCS asked contributing editor Arnold Kling, who has written extensively on the need to find the proper balance of liberty and security in the GWOT (see here for example), for some of his thoughts on the Welch quiz. To the assassination question, Kling responds,

"Militant Islam is at war with the U.S. I think that all American forces serving in other countries, including CIA personnel, should have clear Rules of Engagement that dictate when it is appropriate to attempt to kill. Those ROE's need to be reviewed from time to time, and compliance with those rules needs to be audited. I would expect the ROE's to allow for assassinating Osama Bin Laden wherever he is, even if we are not at war with the country in which he is hiding. I believe that in conducting our side of the war we have killed too few of the enemy, not too many. This suggests that if I were involved in setting the ROE's, I would probably be pushing in the direction of fewer restrictions, not more."

6) Should anti-terrorism cops be given every single law-enforcement tool available in non-terrorist cases?

No. But this question is ambiguous.

I assume Welch means: Should federal law-enforcement be able to apply all anti-terror tools to non-terrorism cases? No. Maybe I'm missing something, but this is so absurd as to be trivial. Should police send SWAT teams in to stop jaywalkers? No. Should the federal government use NSA data-tapping to catch pot-smokers. No.

But if Welch means, Should anti-terror law-enforcement be able to use everything regular law-enforcement personnel use, then Yes.

7) Should law enforcement be able to seize the property of a suspected (though not charged) American terrorist, and then sell it?

No. (But again, this is an ambiguous question.) Freezing assets in terror funding cases? Yes. Selling someone's sneakers on eBay and sending the proceeds to the US Treasury? No. I vaguely remember something like this happening. But I repeat, a person's property should not be liquidated until said person has been tried, convicted, and his property found to be somehow commingled with his criminal or terrorist activities.

8) Should the U.S. military be tasked with enforcing domestic crime?

Yes. But only in certain contingencies. Katrina is a good example. A subsidiarity rule (federalism) kicks in so that it's the responsibility of the next layer of government to step in where there is an absence of law enforcement. In New Orleans, for example, it was only after the city was secured -- and law and order restored -- that anything else (including rescue efforts) could reasonably be expected to proceed. If that requires the National Guard, then so be it. Such a redundancy system is vital to keeping civil order and vital institutions in tact (including libertarian rights to person and property).

9) Should there be a national I.D. card, and should it be made available to law enforcement on demand?

No. I don't think this is necessary and hardly justifiable -- especially given the de facto system of state driver's licenses that already give leviathan most of what it wants. But this is clearly far from an open and shut issue, from a libertarian perspective. As Kling puts it,

"My guess is that a national I.D. card would provide little or no security benefit. However, I am not opposed to the idea in principle. If other checks and balances are in place, an I.D. card does not threaten the balance of power between the individuals and government. If checks and balances are not working, then our liberties are in jeopardy with or without a national I.D. card."

It would seem there's room for debate on this issue among libertarians.

10) Should a higher percentage of national security-related activities and documents be made classified, and kept from the eyes of the Congress, the courts, and the public?

Yes and No. Some things are better set before the eyes of elected officials whom we have entrusted with matters of national security. Some things are better off transparent. I hate that this requires a case-by-case judgment call, but life presents us with cases, not abstractions.

Welch says his belief "crudely summarized, is not only that you do not need to imitate totalitarians to beat them, but that it doesn't actually help." This sentence -- like the test itself -- assumes that if you do not answer "no" to all of these questions, then you are a totalitarian apologist, which is, to put it charitably, absurd. The assertion that anti-terror tactics don't help needs far more support than a simple hyperlink.

My challenge to the proctor of this test is to debate these issues as they come, on a single agreed-to question, and in the context of something less grandiose than a libertarian quiz. The result will be something that will allow people to take all of us libertarians more seriously.


Seizing property
It is unfortunately a widely used tool of law enforcement to seize property without the owner being charged, much less convicted.
What they do is charge the property with commiting the crime, and since property has no constitutional rights ...

I kid you not, but the dockets are full of cases labeled "The state vs. $10,000", and "the state vs. car with VIN #-----------".

If you are innocent, it is up to you to sue the govt, and to prove beyond a reasonable doubt that you are innocent, before you can get your own property back.

Tapping non-Terrorists
Bolton Testimony Revealed Domestic Spying
Jason Leopold, January 2, 2006

...NEWSWEEK revealed earlier this year that the NSA disclosed to senior White House officials and other policymakers at federal agencies the names of as many as 10,000 American citizens the agency obtained while eavesdropping on foreigners. THE AMERICANS WEREN'T INVOLVED IN ANY SORT OF TERRORIST ACTIVITY, nor did they pose any sort of threat to national security, but had simply been named while the NSA was conducting wiretaps.

The "NSA received -- and fulfilled -- between 3,000 and 3,500 requests from other agencies to supply the names of U.S. citizens and officials (and citizens of other countries that help NSA eavesdrop around the world, including Britain, Canada and Australia) that initially were DELETED FROM RAW INTERCEPT REPORTS," Newsweek said in its May 2 issue.

"Sources say the number of names disclosed by NSA to other agencies during this period is more than 10,000. ABOUT ONE THIRD OF SUCH DISCLOSURES WERE MADE TO OFFICIALS AT THE POLICYMAKING LEVEL; most of the rest were disclosed to other intel agencies and, perhaps surprisingly, only a small proportion to law-enforcement agencies."

...During one routine wiretap, the NSA OBTAINED THE NAME OF A STATE DEPARTMENT OFFICIAL whose name had been blacked out when the agency submitted its report to various federal agencies. Bolton's chief of staff, Frederick Fleitz, a former CIA official, revealed during the confirmation hearings that Bolton had requested that the NSA unmask the unidentified official. Fleitz said that when Bolton found out his identity, he congratulated the official, and by doing so he had VIOLATED THE NSA'S RULES BY DISCUSSING CLASSIFIED INFORMATION CONTAINED IN THE WIRETAP...***_eviden.htm

99 Who's that tapping at my door?...
7800 Let's see, Newsweek, (a left-leaning Anti-Bush, anti-Republican Publication) "revealed" that "non-terrorists" were not only wire-tapped, but(horrors!) their names were actually shared with "other intel agencies"!!! I guess I'm supposed to be traumatized by this "revelation." I'm supposed to worry whether the Republic, as we know it, will survive. Guess what? I'm not.

In Newsweek's article, no source for this "revelation" is mentioned. No way for us to know, in fact, that the people in question are "non-terrorists". Just Newsweek's say-so. Given the real revelations of story after story in some of the nation's most "prestigious" news organizations simply made up by so-called "journalists", I guess I harbor a certain amount of skepticism when it comes to a story like this.e

And you know what? I'm not alone. In fact, I venture to say that most Americans (outside the Looney Left) are quite thankful that nearly five years after "9/ll" no Islamo-facist terror has revisited our s****s. Gee, the Bush Administration must be doing something right!

This, of course, drives the Leftists right up the wall. So they have to invent atrocities to throw at a President they simply hate. Indeed, I have no difficulty seeing such people dancing with joy should another act of national terror occur under Bush's watch.

I remain convinced that the gravest threat to American freedom is not the terrorist. It is the American Left.

Fineman's dad was lawyer to Hollywood Communists
Since Newsweek's editor Fineman's dad was a defender of communists in the 40s and 50s can anyone doubt the objectivity and patriotic beliefs of his son? As usual R spins his cut and paste jobs although he had the good taste not to cite another WWP front today.

The article was an excellent rebuttal to the misguided who believe that Americans who aid people engaging in recreational beheading and broadcasting it as their version of reality programming are somehow entitled to the same protections as a jaywalker. Such logic demands we enter into a suicide pact that cannot be justified by anyone who hasn't spent long hours in a straitjacket as Mr. Hampton has.

Libertarian objections
Bush's NSA Actions Make a Mockery of Separation of Powers
CATO, December 21, 2005

"Perhaps the government is justified in taking measures that in less troubled times could be seen as infringements of individual liberties. But if so, the Congress, not the president, is charged with establishing the rules that apply in exigent cir***stances. The executive branch cannot unilaterally set the rules and enforce the rules, then eliminate court review of possible civil liberties violations."

Here are some other answers from me...
I agree with some of Max's answers, except for a few points, and I also believe most of the libetarian quiz is a bunch of bunk, anyway.

Where I don't agre, here are my points:

Question #2: Should the government have the ability to hold an American citizen without charge, indefinitely, without access to a lawyer, if he is believed to be part of a terrorist cell?
The question becomes invalid with the last part, "if he is believed to be part of a terrorist cell?" If you read your morning paper, any arrests made by the police are "... held under the su****ion of.." The charges are already there. After 9/11, many of the people taken into custody in America were here either with expired visas, illegally, or had already been on a terrorist watch list. Plus, they were all mostly arab. The 9/11 operators were arab. That's not racial profiling, it's a fact.

3) Can you imagine a situation in which the government would be justified in waterboarding an American citizen?
I had to look Waterboarding up, I live by the beach. This is a "How Liberal Are You?" question. Of course you can imagine it. Take a "I will NEVER eat meat" vegitarian, and lock them in a room for a week. Offer them a steak, and you better believe they'll want some extra A-1 sauce to go with it.

9) Should there be a national I.D. card, and should it be made available to law enforcement on demand?
Do you cash checks? Do you use credit cards? Do you go to bars? Do you drive a car? You already have a national ID card. Watch COPS. The only ones with out ID are the ones usually hiding something. Unless you are a Dale Gribble conspiracy theorist, or are a criminal, what do yo uhave to worry about?

10) Should a higher percentage of national security-related activities and do***ents be made classified, and kept from the eyes of the Congress, the courts, and the public?
Another 2-parter, and this one (as well as most if not all of the other 10 questions) plays on the ignorance of the reader to form an opinion. Kept from congress and the courts? No. They have the clearences and rights, given by us when we elected them, to view the information. From the Public? Only on a need to know basis, and after the secret situation has been resolved, so as not to endanger our operatives or ourselves.

I'm giving you the gist of my opinions, from my experiences. I'm a sat-comm modem repair technician, and a USMC-R SSGT.

I love the way R likes to pretend that whoever agrees with him is the world greatest expert on the subject at hand.

On any given subject you can find people on every possible side, and then some.

The fact that R can find somebody, somewhere who agrees with him, is hardly surprising and only impresses him.

NSA wiretap etc
Technologically speaking, no electronic communication is private. NSA has the mechanism. The question is: Can NSA use it to catch a terrorist before the commission of an act? Yes. Can the information collected without prior approval by a judge used to get such approval? Yes. Can the unapproved wiretap used as evidence in a court of law? No.

If we are concerned about our privacy, we should take care to live our lives without revealing. We cannot claim the liberty to expose ourselves in public and then claim that no one should photograph us when so exposed. It is like that with technology. If we do not want NSA to wiretap, do not use electronic communication.

You know what they say... a million monkeys...

Ol' hammy there couldn't find an original thought of his own without google.

Wiretap... Spyware?
All this righteous indignation toward the NSA is hillarious. What about all these criminals that listen in or hack computers, cell phones and networks to get our personal information? They're doing the same thing as the NSA.

But, I trust that the NSA has our best interest at heart. I am also positive that not only myself, but all of us posting here aren't even a blip on the NSA's radar.

Is the President above the law?
How Much Authority Does the President Possess When He Is Acting as "Commander In Chief"?
By Edward Lazurys, January 5, 2006

...Jackson wrote in his concurrence [Youngstown Sheet & Tube Co. v. Sawyer - 1952], that power is at its strongest when the President acts pursuant to congressional authorization, and less certain in the face of congressional silence. But "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. PRESIDENTIAL CLAIM TO A POWER AT ONCE SO CONCLUSIVE AND PRECLUSIVE MUST BE SCRUTINIZED WITH CAUTION, for what is at stake is the equilibrium established by our constitutional system."

...Presciently, Justice Jackson wrote in his concurrence that "[t]he opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies -- such as wages or stabilization -- and lose sight of enduring consequences upon the balanced power structure of our Republic."

As Jackson recognized, the true issue in Youngstown was not the seizing of steel mills -- any more than the issue today is the need to vigorously pursue al-Qaeda and other terrorist networks. THE ISSUE IS THE INTEGRITY OF THE VERY STRUCTURE OF OUR GOVERNMENT.

Today, because the President bypassed both Congress and the public, the issue runs even deeper than with President Truman. The issue now is encapsulated in the simple but devastating question of whether the President is above the law...

Washington Times & Barron's Financial Weekly
Expanding presidential powers
Washington Times, January 9, 2006

...the more we know about the porous nature of the president's defense of his authorization of the NSA's bypassing the FISA Court, it's becoming clearer that the New York Times should not have held the story for a year at the Bush administration's request. As the business publication BARRON'S FINANCIAL WEEKLY put it on its Dec. 26 front page: "The pursuit of terrorism does not authorize the president to make up new laws."

...The reason, as James Madison foretold, that a FREE PRESS IS CRUCIAL TO KEEPING US FREE is that once a story of this magnitude breaks, we keep learning more about what we need to know as a free people. For example, the president's credibility has hardly been enhanced when he keeps maintaining that, in this war on terror, there is no time to wait for a warrant from the FISA court in an emergency -- law says that in an emergency the government can engage in surveillance right away and has 72 hours to go back to FISA court for a warrant.

...The results of the president's ignorance of the limits of his constitutional powers as commander-in-chief in this war have already encouraged defense attorneys in terrorism prosecutions to use NSA's lawlessness as a weapon in court. As was written in the Dec. 28 New York Times: "Some Justice Department prosecutors... were concerned that the agency's WIRETAPS WIHOUT WARRANTS COULD CREATE PROBLEMS FOR THE DEPARTMENT IN TERRORISM PROSECUTIONS both past and future." At least this furor shows that "The Rule of Law" is not just a slogan in this country. It has sharp teeth, and Mr. Bush is feeling its bite. As the world looks on, so are we.

R's methodology
Search long and hard, find an article any article, that seems to support his position.
Cut and paste said article without comment.

I'm guessing that R actually thinks that he has the last word on the issue since he has discovered that there are one or two people in the world who agree with him.

If you have reason to refute the argument presented in the Findlaw article, I'd like to hear it.

There are way more "experts" who declare that the President is entirely within his authority to order these wiretaps, or at least the issue is debateable.

But as usual, R searches far and wide to find partisan hacks who agree with him, and cut and paste their positions.

Be a liberal, it's easier than thinking for yourself.

If you've read my posts, you know I support the current NSA program. However, you've gone way to far.
By your logic, the ability to tap is equivalent to the right to tap.

I'm never willing to grant the assumption that the govt has our best interests at heart. Any organization, especially a govt, only has it's own interests at heart.
In the current situation, the war on terror, those interests happen to coincide. In the future, those interests can and will diverge.

For every hack you find claiming the president has no war powers, I can find a dozen experts who claim he does.

Come on R, break pattern, think for yourself.

War Powers
The president has the power to conduct war as he sees fit.
Surveliance of possible enemy agents has always fit into the standard definition of war powers.

Congress can't limit a president's constitutionally granted powers by the passing of a law.

Congressional Research Service
Memo Questions Domestic Monitoring Excuse
AP, January 7, 2006

...two attorneys form the Congressional Research Service, legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees "does not seem to be as well-grounded as the tenor of that letter suggests."

The National Security Agency's activity "may present an exercise of presidential power at its lowest ebb," Bazan and Elsea write in the 44-page memo.

...the memo concludes: "It appears unlikely that a court would hold that Congress has ... authorized the NSA electronic surveillance operations here under discussion."

The President is not a King
Judges just briefed on surveillance plans
AP, January 9, 2006

...In a letter Monday to congressional leaders, 13 legal scholars said the Justice Department's written justification for the NSA monitoring program "fails to offer a plausible legal defense."

...The 13 experts said it is "beyond dispute that, in (our) democracy, the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

Legal analysts at the Congressional Research Service last week raised similar questions, and lawmakers have called for hearings on the NSA program.

The group included former federal judge William S. Sessions, who served as FBI director from 1987 to 1993 under President Reagan and President George H.W Bush.

War Powers Resolution of 1973
A war time president DOES NOT have the power to side-step the Constitution -- and we're not even in a War in any traditional sense.

War Powers Resolution of 1973

d) Nothing in this joint resolution--
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution.

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