Privacy

Which is government’s primary responsibility…to preserve order or to protect the rights of individuals? The answer is BOTH. Therein lays the problem that creates the debate, Order v. Liberty.

If you’re dead, liberty is useless: If you’re enslaved, you may as well be dead.

The institution primarily tasked to preserve the rights of individuals is the most passive branch of our government, the Judiciary. Federal courts initiate nothing. They decide cases brought to them. The courts do not have the power to enforce their decisions. Nonetheless, during peacetime, arguments to protect the rights of individuals generally prevail.

The institution tasked to preserve order is the most active [and the most dangerous] branch, the Executive. Fears of an unchecked Executive Branch are real and justified. During peacetime the Executive Branch is hard pressed to justify actions taken for security purposes that hedge upon the realm of our most sacred civil liberties. During wartime, however, fear of the enemy generally trumps our fear of tyranny.

The problem we face today is that a significant percentage of Americans have forgotten we are at war.

If you go to the American Civil Liberties Union website to find a description of the weeks old FISA Amendment Act of 2008, for example, you’ll find the headline: Unconstitutional FISA Bill Becomes Law, followed by the following description of the law:

On July 10, President Bush signed into law the unconstitutional FISA Amendments Act, which gives the Bush administration virtually unchecked powers to monitor Americans' international phone calls and emails, and grants immunity to telecommunications companies that illegally aided in the president’s warrantless wiretapping program.

Putting aside for now the fact that an Obama or a McCaine Administration will have the same power, if you go to GovTrack.US, look up the legislation, and read the prepared summary, you will find out what the ACLU means by “virtually unchecked.” Section 4 of the FISA Amendment Act of 2008

Allows that in emergency situations, the Attorney General and the Director of National Intelligence to authorize surveillance for up to 45 days of non-United States persons who are reasonably believed to be outside of the United States and who may be communicating with someone inside the United States, but that within seven days, an application must be filed for approval from the court established under FISA.

It seems to me giving our intelligence community seven days to file for approval by the FISA court is a reasonable check on our government’s surveillance activities in emergency situations. Requiring a warrant prior to the initiation of surveillance activities places cement shoes on the feet of our operatives who are expected to protect us from terrorist threats coming from “wherever” in the very fluid, high tech global environment. When a lead shows itself, it must be acted upon immediately, or it will soon become cold and useless.

This whole argument reminds me of an Emo Phillips joke. [It’s been years since I heard the joke, but I’ll do my best to explain it.] Emo starts off making the point that his sister is choking on a chicken bone. He tells us a few funny things about his sister and then goes into a five minute discussion of how he parks his car, goes into the library, finds the book he’s looking for, asks the librarian for change of a dollar so that he can make a copy of the page he needs; he cracks on the stupid librarian for a while and the library’s stupid policy of not making change, walks across the street to the KFC to get change, then back to the library to make his copy. Five minutes and a dozen little jokes later, Emo finally lets it be known that the page copied at the library explains how to do the Heimlich maneuver… “By this time my sister is just blue, choking on that chicken bone…”

The ACLU’s right about a lot of things, but not this one. Effective intelligence can not be achieved by a lumbering bureaucracy. Rules for stopping these unconventional warriors, the terrorists, must give our agents broad latitude to do their most important work. Intelligence officers must act quickly without fear of prosecution should they make an honest mistake. If they have made a mistake, the FISA Court will have the power to order the cessation of surveillance activities on the subject[s] in question.

The logic is similar to the War Powers Act, where the President can order U.S. combat troops into action anywhere on the globe without prior Congressional approval. Within 60 days the president must convince Congress that the deployment is just and necessary or Congress can order the troops home. The War Powers Act, like the FISA Amendments Act, gives the executive branch the power to act quickly in an emergency, while Congress and the FISA Courts, respectively, retain the power to check the executive action and order corrective action.

ACLU cynicism in this case assumes that the professionals who make-up our intelligence community, tasked with the life or death responsibility of weeding out Al-Qaida terrorist cells in our neighborhoods and across the globe, will use their new tools to read e-mails and listen to phone conversations of ordinary Americans. Fortunately, our Republican president, our Democratic Congress, and most Americans do not share their doubts.