Friday, May 21, 2010

Terrorism And The Constitution

Am I missing something? How hard is this to figure out?

Nine years ago, out of what was, quite literally, a clear blue sky on a gorgeous late summer day, two airplanes crashed in to the World Trade Center, while simultaneously a third passenger jet slammed in to the Pentagon. A fourth crashed in Pennsylvania in circumstances that will never be known. Among the reactions to this event was a serious erosion of certain constitutional liberties, and the curbing of some normal civil practices (remember Clear Channel editing certain songs on their radio stations?) in the name of national security. No longer limited to our foreign policy and the general goal of advancing our national interests abroad, national security, for better or worse, had returned to include domestic civil life, as it had done on and off through the years of the Cold War (and, yes, even before that . . .)

Civil libertarians, and even those generally concerned that the US should uphold its most cherished values in the face of direct threats to those values, have been fighting a very long battle against both powerful people in two Presidential Administrations as well as public opinion both on the merits and the principle involved. Part of the reason the fight has been both long and continues is simple enough if you stop and consider that our society is quite open. The legal and constitutional restrictions on police actions, while not as stringent as in some other countries or as they have been even in the recent past, do give even those with serious criminal intent a certain arena of personal freedom to conduct their private affairs free of the state intrusion. For those deemed, not "guilty" as Quiggin says in the linked piece, but certainly suspicious, this arena of personal freedom is viewed as part of the problem. To most people most of the time, who do not engage in any illegal activity and do not view the proposition of state intrusion in previously out-of-bounds areas of personal life as a threat, the notion that these expanded police powers actually constitute not a threat only to those who intend harm but to all persons is nonsensical on the face of it. Why would I, sitting in the privacy of my own home, going about the daily round of my life, fear the state's intrusion in my life? Indeed, even if they did so, what they found would be so banal they would quickly lose interest. What civil libertarians such as Greenwald and others fail to understand is the erosion of constitutional protection against state police powers is welcomed precisely because the threat - terrorist attacks - is so outrageous.

Now, anyone who has read this site for more than a few days should know that I do not support the erosion of constitutional protections. Indeed, the specific issue of Mirandizing terror suspects addressed by Greenwald, seems silly on the face of it. Recent suspects in failed terror attacks have been read their Miranda rights and cooperated with authorities. Quite apart from whether or not this or that person says we should stop reading persons arrested on suspicion of terrorism their rights, any policy expert should know it has not been a barrier to investigation or successful prosecution.

The larger question, for me at least, is the wonder expressed by both Greenwald and the folks at Crooked Timber. After 9/11, the PATRIOT Act was passed in order to assure domestic security in the face of the presence of potential and actual threats to our national security here at home. Yet, threats persisted and there were a series of successful and failed terror attacks (does no one remember the anthrax attacks?). In the wake of each failed attempt, the "ratchet" is turned another notch or two (to borrow the metaphor from Quiggin) because supporters of previous measures realize that the previous measures have failed to protect us. So, we need to "do" more.

The reason it's done? Because they can and they have general public support, without any specific instances of these eroded protections impacting the general public in a negative way. Civil libertarians are correct on the merits, legal and civil. The problem is these aren't just legal and civil matters, but political matters, and the politics, it seems are against those who prefer a broader array of protections against state intrusiveness (people like me).

I should note, also, that the Obama Administration follows the letter and spirit of Bush-era laws regarding state police action because they are the law. As individuals, Barack Obama and Eric Holder may not like the Patriot Act, but as public officials charged to preserve and defend the Constitution, and to follow the law, there is no reason in the world why they shouldn't follow those laws. Repealing them is the provenance of Congress, which hasn't acted.

I have to ask again why this seems to mysterious.

Virtual Tin Cup

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