Exchanging Liberties or Exercising Wisdom?
I have tired of hearing the maxim from Ben Franklin that those who exchange their liberty for security deserve neither, when discussing the issue of NSA wiretaps. The quote has its place in debate, of course, but using it as the guiding ethic is inappropriate.
Franklin's comments need to be seen in the context of the time in which they were made--an era when Thomas Hobbes Leviathan suggested the wisdom of despotic government. Hobbes basic thesis, while encouraging the sovereign despot to be a benevolent leader, was that people turn their freedom to operate outside the strictures of the social contract over to the sovereign who will provide security for the people. And while I doubt that Franklin was directly responding to Hobbes, as an ardent supporter of a democratically elected representative government of laws, Franklin opposed the notion of subjecting oneself to unaccountable government. And in Franklin's day, the notion of wiretaps to intercept telephone calls, calls coming to and from foreign countries, and for that matter "calls" did not exist. Neither did the notion of terrorists flying planes into skyscrapers, the destruction of cities by weapons of mass destruction, and the annihilation of our population by zealots who use our civil liberties and political sensibilities against us. So while Franklin's quote is a fine reminder that liberty is something not to be tossed aside lightly, it is also a very poor place to begin or end this debate.
And it is probably helpful to recognize that the Founders--including Franklin--probably did not intend the Constitution to be a suicide pact. It exists for our protection, and it stands to reason that the Founders would take a dim view of saboteurs making use of our civil liberties as a tool to shield them from detection and interdiction as they plot our destruction, and would want a means to protect people from warrantless inspection of their private communications. And it also stands to reason that we need less protection from the state than we do those who have an interest in destroying that state and us with it.
So any discussion as to what kind of measures we must take to protect ourselves must begin with 9/11. It defined the stakes.
And while we have an interest in keeping our communications private, we have another interest in keeping ourselves alive and with an intact society. Given the knowledge that our enemies use our legal system and its loopholes and protections to their advantage as they plot an attack on our homeland, it makes sense that we will afford their communications less protection. But, as some fear, in less scrupulous hands this power could lead to warrantless domestic eavesdropping, and in a Nixonian environment, such a thing would have been a very powerful tool against lawful political opponents. And while government overreach is a concern when adding powers to it, this argument misses a very significant point. Our right to privacy as provided by the Bill of Rights is intended to protect private citizens from a nosy government that harasses them. It bases its protections around the assumption that people are basically lawful, and that if for some reason they are committing crimes the state can apply for a warrant to take a closer look at their behavior. But the dire risk posed by al Qaida is something that cannot be treated as common crime, which reflects the basic misunderstanding of some as to how to handle terrorism.
A drug dealer is certainly a threat to the neighborhoods upon which he preys, but he can be quickly and easily brought down, extracted from the community and the effects of his crime minimized. But not so the terrorist. By the time a bomb goes off in a mall, a school is attacked, an airborne disease process is released, a plane is hijacked, or they get a crude atomic device to work, the damage is catastrophic and irreparable.
I suppose that there is a law enforcement component to anything like this, but the matter is far more significantly rooted in our nation's right to use whatever means necessary to preserve domestic safety and security. And to put them in the same category is a gross error. They are not the same thing and for the sake of our nation, cannot be treated that way.
And while the scheme we have now is not perfect, it does work. A few legal niceties need to be worked out, but the larger point of surrendering liberties is one more smokescreen that ignores the reality and cleverness of the enemy that we face.
So we need to ask ourselves, if we hold strictly to interpretations about privacy, if we are left with another major disaster as a result of a terror attack, will we be comforted by the fact that at least people's 4th Amendment rights were protected?