In the past week or so, the media, led by the NY Times, have been heavily focused on the NSA eavesdropping story and the Presidential orders relating to the "domestic spying" activities. I'm not going to get into a discussion of the legality of what the NSA or other government agencies did, upon Presidential order (other than to point out that when I was in college (early 80s), a good friend's father, who had a PhD in math, worked at the NSA developing programs that were used to analyze intercepted communications, and it sounds a lot like what is going on today, so the outrage over this is curious), but I will note that even the NY Times had to admit that the "spying" didn't violate any laws.
What I will get into is the concern that the media (especially the Times, which broke the story and continue to cover it extensively) have regarding the collection and analysis of intelligence and how it allegedly violates individual rights to privacy.
As I understand the program, only selected communications were intercepted, ones that had a connection to someone suspected of ties to terrorism. It wasn't a program where all communications were collected and run through a program to find anything that may be of interest.
In other words, before any of these warrantless searches could be made, there had to be a tangible connection between the target and known terrorist operators. To me, that sounds like it was designed to satisfy the conditions enumerated by this phrase:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated
That's from the Fourth Amendment to the US Constitution. It seems reasonable to me to monitor the communications of someone communicating with terrorists.
But to the media, even though warrantless searches are nothing new for Presidents, the fact that they were and are focusing on Islamic terrorists seems to have hit a nerve.
On the one hand, the liberal media hate the war on terror, think it is misguided and based on lies, fault the intelligence that led to the war and insist that we could have fought against terror by having had better prevention activities rather than prosecuting a war.
On the other hand, they think it's outrageous that we'd have an intelligence effort in effect that is designed to do exactly what they claim we didn't do well enough before 9/11, i.e., intercept the communications leading up to the terror attacks in an attempt to prevent them.
I don't get it.
How do you get good intelligence if you don't engage in activities like warrantless searches focused on people communicating with terrorists? Even the Times admits that, though they ran the story, there wasn't a violation of constitutional rights inv0lved.
The disdain and outrage seems to be based on the misguided notion that there is an absolute right to privacy granted under the Constitution. Read the Constitution and while you'll find a right to own firerams, you won't see a right to privacy. There isn't one.
The Times is trying to shock its readers, especially those who don't have any background in law, with a story about the big bad Bush administration spying on individuals and violating a right that doesn't exist.
I find this concern interesting, since it is the Times and the liberal media (and political establishment) that are so quick to suspend constitutional rights when it suits their agenda.
Take "assault weapons" as an example. Even though the same Constitution that they hold up as a guarantee of privacy rights to kill a baby or plot to launch a terrorist attack has a provision that goes one step beyond this unwritten privacy right and affirmatively states that there is a right to keep and bear arms, they (liberal media, politicians) seem to ignore all of those concerns about privacy and the constitution.
Why?
Because, as was shown in my prior
post about San Francisco's recent election (which resulted in a total ban on firearms), infringing individual rights, as long as the right relates to guns, is justified if you can prevent even one violent act.
This is where it gets confusing, so I'm going to try to simplify matters with a little list starting with the legal basis of the right and then a summary of how the left sees the right:
Abortion: No constitutional provision providing a right to abortion, just the general principal of privacy (also not in the constitution). According to the left, anything that inhibits this "right" should be struck down.
Communications: Constitutional requirement of a reason for the search and seizure and warrant, at times. According to the left, if the reason for the search is to prevent terrorism, out of thin air there is now an absolute right to privacy and a warrant must be had.
Firearms: Constitutional right to "keep and bear arms." According to the left, this is not really a right, even though it is plainly written as a right, and a total elimination of the right is justified.
I just don't see the logic there. If there is an unwritten right to privacy that allows you to kill a baby and conspire with terrorists, how can that unwritten right, especially in combination with the enumerated Constitutional right, be so easily ignored when it comes to firearms?
And here's the part that ties it all together for me. This was a NY Times editorial from March 9, 2005:
Terror Suspects' Right to Bear Arms
(NYT) 362 words
Published: March 9, 2005
The good news for Americans concerned about post-9/11 preparedness is that 58 potential gun buyers were flagged in a nine-month period last year as positive matches on a federal watch list of terrorism suspects. The bad news is that 47 of them were cleared to go ahead anyway and buy assault rifles, ammunition or whatever else was on their firearms shopping list. Federal agents could only watch as the crazy quilt of loopholes that passes for gun control in this country enabled dozens of suspects to stock their personal or group armories.
Welcome to the new world of homeland security, where all the national resolve to be alert is clearly butting into the citizenry's near-almighty right to bear arms.
Warnings about terror suspects' easy access to combat rifles grew after 9/11 when it was disclosed that John Ashcroft, a gun rights zealot who was attorney general at the time, had blocked federal agents from matching gun-purchase records against the growing list of thousands of terror suspects. The privacy rights of innocent gun purchasers were deemed paramount in the national emergency. The policy was theoretically reversed, but federal agents complain that they are still stymied by laws and officials dedicated to the most extreme agenda of the gun lobby.
The alarming ease with which terror suspects can buy high-powered weapons on Main Street was disclosed by the Government Accountability Office, the investigative arm of Congress. This is an irony in itself since the Republican-controlled Congress declined last year to renew the 10-year-old assault rifle ban, which had helped keep battlefield weapons out of the hands of mayhem-minded citizens.
The study was requested by Senator Frank Lautenberg, Democrat of New Jersey, who is proposing to keep the gun-purchase records of terror suspects on hand for at least 10 years. Currently, purchase records must be destroyed within 24 hours -- another victory for the gun lobby that was obsequiously enacted last year by Congress.
Look at the passage above in bold. Here, the Times scoffs at privacy rights, implying that they should be suspended in the quest for national security. The entire editorial argues that the constitutional right to own firearms should be ignored if there's even a remote possibility that the suspension could assist in the prevention of terrorism. Notice that they don't provide any statistics about firearms use by terrorists operating against the United States. Why? Because terrorists haven't been using firerams against us. They've been using commercial airliners or explosives. Even with that glaring omissions, the Times' position would be fine if the Times was consistent with their belief in the supremacy of terror prevention.
They're not. Read this editorial from December 18, 2005 and notice how important the Constitution and the unwritten right to privacy becomes...
This Call May Be Monitored (NYT)
904 words
Published: December 18, 2005
On Oct. 17, 2002, the head of the National Security Agency, Lt. Gen. Michael Hayden,
made an eloquent plea to a joint House-Senate inquiry on intelligence for a sober national discussion about whether the line between liberty and security should be shifted after the 9/11 attacks, and if so, precisely how far. He reminded the lawmakers that the rules against his agency's spying on Americans, carefully written decades earlier, were based on protecting fundamental constitutional rights. If they were to be changed, General Hayden said, ''We
need to get it right. We have to find the right balance between protecting our security and protecting our liberty.'' General Hayden spoke of having a ''national dialogue'' and added: ''What I really need you to do is talk to your constituents and find out where the American people want that line between security and liberty to be.''
General Hayden was right. The mass murders of 9/11 revealed deadly gaps in United States intelligence that needed to be closed. Most of those involved failure of performance, not legal barriers. Nevertheless, Americans expected some reasonable and carefully measured
trade-offs between security and civil liberties. They trusted their elected leaders to follow long-established democratic and legal principles and to make any changes in the light of day. But President Bush had other ideas. He secretly and recklessly expanded the government's powers in dangerous and unnecessary ways that eroded civil liberties and may also have violated the law.
In Friday's Times, James Risen and Eric Lichtblau reported that sometime in 2002,
President Bush signed a secret executive order scrapping a painfully reached, 25-year-old national consensus: spying on Americans by their government should generally be prohibited, and when it is allowed, it should be regulated and supervised by the courts. The laws and executive orders governing electronic eavesdropping by the intelligence agency were specifically devised to uphold the Fourth Amendment's prohibition of unreasonable searches and seizures. But Mr. Bush secretly decided that he was going to allow the agency to spy on
American citizens without obtaining a warrant -- just as he had earlier decided to scrap the Geneva Conventions, American law and Army regulations when it came to handling prisoners in the war on terror. Indeed, the same Justice Department lawyer, John Yoo, who helped write the twisted memo on legalizing torture, wrote briefs supporting the idea that the president could ignore the law once again when it came to the intelligence agency's eavesdropping on telephone calls and e-mail messages. ''The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties,'' he wrote.
Let's be clear about this: illegal government spying on Americans is a violation of individual liberties, whether conditions are troubled or not. Nobody with a real regard for the rule of law and the Constitution would have difficulty seeing that. The law governing the National Security Agency was written after the Vietnam War because the government had made lists of people it considered national security threats and spied on them. All the same empty points about effective intelligence gathering were offered then, just as they are now, and the Congress, the courts and the American people rejected them.
This particular end run around civil liberties is also unnecessary. The intelligence agency already had the capacity to read your mail and your e-mail and listen to your telephone conversations. All it had to do was obtain a warrant from a special court created for this purpose. The burden of proof for obtaining a warrant was relaxed a bit after 9/11, but even before the attacks the court hardly ever rejected requests. The special court can act
in hours, but administration officials say that they sometimes need to start monitoring large batches of telephone numbers even faster than that, and that those numbers might include some of American citizens. That is supposed to justify Mr. Bush's order, and that is nonsense. The existing law already recognizes that American citizens' communications may be intercepted by chance. It says that those records may be retained and used if they amount to actual
foreign intelligence or counterintelligence material. Otherwise, they must be
thrown out.
Scott McClellan, the White House spokesman, would neither confirm nor deny the Times article. Instead, he talked about President Bush's urgent mission to protect Americans and assured everyone that Mr. Bush was following the law. This White House has cried wolf so many times on the urgency of national security threats that it has lost all credibility on that front.
Worse, we have learned the hard way that Mr. Bush's team cannot be trusted to find the boundaries of the law, much less respect them. Mr. Bush should retract and renounce his secret directive and halt any illegal spying, or Congress should find a way to force him to do it. Perhaps the Congressional leaders who were told about the program could get the ball rolling.
If someone can explain to me why they mocked the Constitutional right to keep and bear arms in the first editorial and went so far as to argue that individual rights should be suspended when the security of the nation is at stake, yet in the second editorial argued that individual rights should never be infringed, even if it means that our efforts to prevent terrorism will be harmed, please do so.
As it is, I see a big fat double standard.
A big fat dangerous double standard that seems to be designed to empower terrorists and strip individuals of the right to defend themselves.