Domestic Surveillance, Classic Liberalism, and the Constitution

What are classic liberals to do? The dilemma posed by the domestic surveillance issue present the toughest quandry for classic liberals/libertarians. For myself, I am torn between the individual liberty side of me and the military/security side of me.

I believe that my individual right to be safe in my own home and to be secure in the knowledge that my communications, mail or otherwise, are not be reviewed by the government is paramount. Further, those same concerns extend to other law-abiding citizens of this country. We each have a right to be secure in our privacy.

In addition, I know that I can protect myself and my family against direct threats to me. However, there are limits to my ability to protect my family and myself. Those limits include an inability to stop most crime, to protect myself against terrorist attack and attacks by foriegn powers. I have neither the resources nor the skill to take on those tasks.

The government, in a classic liberal sense, must be limited in the roles it undertakes, particularly when those roles infringe upon or even touch upon individual liberty. But one key role a government must undertake for those it serves is to protect its citizens against criminals, against terrorists (a criminal of a different stripe), and against foreign powers. The government is uniquely suited to perform that role.

In order to perform its protective function, the government must have the tools to perform their mission. Effective defense of citizens no doubt includes the gathering and analysis of information, including communications. Defending Americans often requires watching them from afar, even watching their activities electronically. Thus we have the rub, such activities by there very nature infringe on protected rights.

The law and order side of me would say that if you are engaged in criminal activity, you have forfeited some of your rights by stepping over the line between acceptable and criminal behavior. However, we still live in a country of laws and the government still has to prove that you are a criminal. So, in order to respect the tension between governemtnal need and individual rights, we have the courts a neutral arbiters.

Here is where I wonder what went wrong in the Bush White House. In the days immediately following 9/11, there was understandably a push to ensure such attacks do not occur again. In that regard, the police, FBI and intelligence agencies needed to collect information, but do so secretly to prevent tipping our hand. Why then take the drastic step of domestic terrorist surveillance without a warrant?

There existed a specific set of judges to whom the administration may have gone to obtain a warrant. Why not go there? Most surveillance warrants are kept sealed from public view. While judge in the weeks following September 11 may have been just as vengeful, seeking retribution against those who attacked us, the judge need not have issued a blanket warrant. He could have told FBI agents, "here's your warrant, but come back and justify the continued need in three months."

In this way, the FBI could have conducted surveillance on American citizens without tripping on the Constitution.

One arguemtn I have heard is that getting warrants takes time, and time was a precious commodity. Hogwash!! I am no expert on the procedures to obtain a warrant, but I suspect that in emergencies warrants can be gotten in relatively short order. Courts, when dealing with issues of extreme privacy or security, often take steps to keep proceedings nominally public but still respecting rights of individuals involved.

We have courts for the purpose of balancing interests. I want the government to protect me and my family, but I also want to make sure that government doesn't exercise its powers too broadly. I am having a tough time drawing a line, as are most Americans I suspect. But that is what makes this question so hard, so important and so worthy of discussion.

For a legal analysis of what the law regarding domestic intelligence surveillance is, please see Professor Orin Kerr's analysis at the Volokh Conspiracy. The analysis is lengthy, but a great primer on the law. George Will discussed his thoughts in the Washington Post, in which he asks, why the White House didn't simply ask Congress for exanded authority.

Indeed, implicit in Kerr and Will's arguments is the fundamental nature of our government, that few powers assigned the government are plenary in nature. Plenary, as Will noted, means "complete, entire, perfect, not deficient in any element or respect." While it is likely true that the President has plenary powers to conduct wars on behalf of the nation, the Constitution assigns the power to declare war to Congress. Congress could have been more express when granting the President the power to fight terrorism by declaring an actual war on terrorism through the passage of a declaration of war, as opposed to the rhetorical flourishes used to describe our activities to date.

While legislation passed by Congress in the immediate aftermath of 9/11 has many of the hallmarks of a declaration of war and the granting of broad authority to the preseident to prosecute a campaign against terrorists, it doesn't actually say, "We are at war with terrorist and the President is hereby free to find, capture, kill or other wise eliminate such terrorists. Instead the language is more restrained, i.e. defend America against terrorist attacks.

I have often railed against Congress for being too vague in its legislative drafting, for being to wishy-washy to actually say what needs to be said. In this case, the President's problems relating to this domestic surveillance comes because both he and Congress failed to follow the Constitutional paths laid out by the Founders and seek a declaration of war.

In this dispute, I really want to come down on the side of the President's power to conduct this surveillance. I imagine that there will be some justification found through some analysis of vague segments of law unknown to most Americans until now. But this problem could have been, should have been avoided, by following Constitutional procedures, i.e. getting a warrant. Even in war, we are a nation of laws.

Posted by Matt Johnston at December 22, 2005 12:18 PM