December 18, 2005

Why Morris Is Wrong

Morris, in comments to a previous post, chided me for not taking the threat of terrorism seriously:

That's essentially the argument you're making, saying that we shouldn't adapt to this threat until it's stronger than we are. And that is all well and good in an ivory tower, but every time terrorists kill hundreds of people, they probably think in their last breath of life that the threat is potent enough to adapt to.

My response is stolen from Scott Lemieux at Lawyers, Guns and Money:

And this is what's so chilling about Bush's defenders, which is a common feature of wartime violations of civil liberties: their fundamentally auhoritarian mindset. Ess0entially, defending this policy depends on the assumption of a zero-sum game between civil liberties and national security. Defenders of the policy simply assume, without any independent logic, that because this policy violated civil liberties that it must, somehow, contribute to protecting national security. But there's simply no reason to believe that it does. Even if you believe that formally illegal measures may be defensible in emergency situations, the national security justifications in this case don't come remotely close to meeting the necessary burden. This policy is simply transparent illegality in the service of nothing but the power aggrandizement of the Bush Administration. [edited to correct spelling mistake]

Morris, why do you assume the President's actions have actually helped? What evidence do you have that this policy is actually beneficial to stopping terrorism. We know the policy does reduce civil liberties (that's clear from the reporting), but there is no evidence that it has benefitted the national security of the country. Why, as Lemieux asks above, are you willing to accept that the President illegally suspended warrants when it was unnecessary, as the law allows wiretaps without warrants temporarily? (See this Hilzoy post for an explanation of the relevant laws, the FISA.) Or, in other words, the President willingly violated the law for no reason. Isn't that something you should at least think about?

Just to follow up: (A)The FISA (Foreign Intelligence Surveillance Act) procedures allowed Bush to get a wiretap on anybody he wanted at any time, with no delay; (B)Bush repeatedly signed off on this executive order, which clearly violated the (very minor) restrictions of FISA; (C)There is no evidence that the illegal wiretapping has actually been useful/successful in the war on terrorism (the original NYT story quoted administration officials as saying the NSA program was responsible for stopping the bombing of the Brooklyn Bridge and a plot in Britain; these are unsubstantiated claims). Thus, we have seen a dimunition of our civil liberties (directly ordered by the President) for either no or little gain in security. It's that simple.

As a second, and related point, if all the Conservatives/Republicans are in favor of violations of civil liberties in order to save American lives, I've got a much better idea: lets start banning the things that kill Americans. Via this chart:

Annual Causes of Death in the United States

Tobacco 435,0001
Poor Diet and Physical Inactivity 365,0001
Alcohol 85,000 1
Microbial Agents 75,0001
Toxic Agents 55,0001
Motor Vehicle Crashes 26,3471
Adverse Reactions to Prescription Drugs 32,0002
Suicide 30,6223
Incidents Involving Firearms 29,0001
Homicide 20,3084
Sexual Behaviors 20,0001
All Illicit Drug Use, Direct and Indirect 17,0001,
Non-Steroidal Anti-Inflammatory Drugs Such As Aspirin 7,6006
Marijuana 07

(You can follow the link to the original chart and read all the footnotes if you want. Also, the data in the charts dates from 1996 to 2001.)

If the primary purpose of government is to save our lives and make the country safer (in order to preserve our lives), the chart presents many, many much more efficient and effective ways for the government to remove our civil liberties in order to save us. First, and most obviously, ban tobacco. Tobacco kills about half a million Americans a year (note: Al Qaeda has killed, at most, just over 3000 Ameicans). Banning tobacco, while a violation of our civil liberties, would save about 150 times as many as Americans in one year as Al Qaeda has killed in over a decade. Banning firearms (again, a violation of the Constitution and our civil liberties) would save in one year over 9 times as many Americans as Al Qaeda has killed. Merely banning asprin would save, in one year, more than double the number of Americans Al Qaeda has killed (of course, that would also violate our civil liberties, but we've already determined that the President can do that in order to save lives).

The President violated the law. He may have had good intentions when he did so (I'm more partial to the "he thinks the laws don't apply to him" explanation, but I can be charitable), but that doesn't excuse the violation. The fact that so many Americans are willing to accept the President's authoritarian approach to national security boogles my mind.


Posted by baltar at December 18, 2005 03:57 PM | TrackBack | Posted to J. Edgar Hoover | Law and the Courts | The Ever Shrinking Constitution


Baltar I'm with you on the he thinks he's above the law thing. After all, as was recently noted, to Bush the constitution is "just a piece of paper" (yet he's willing to see thousands of Americans dead and spend hundreds of billions of our dollars to get a "piece of paper" in Iraq).

Posted by: Armand at December 18, 2005 04:10 PM | PERMALINK

some domestic violence analogies

Um, please tell me you are not going to start singing that god awful song Hannity uses.

Posted by: binky at December 18, 2005 04:14 PM | PERMALINK

We had a discussion a little over a year ago on this blog when Bush was running for President. I stood up for Bush and said that because of him we hadn't had a successful terrorist attack on our soil since 9/11. Some of my esteemed debaters on this blog said that that didn't mean anything, because we had no reason to believe the terrorists had even tried to attack us since 9/11, and Bush wouldn't hold out on something like that because he's Machiavellian, and it would have been to his political advantage to tell us about it, and since he's corrupt that's what he would have done if such attacks had taken place, etcetara ad nauseum. I argued that if he hadn't told the American people about attacks, it would make perfect sense because he's committed to protecting national security, and to tell us might jeopardize ongoing investigations and that sort of thing. You call me a sheep now as you would have then if you'd thought of something that clever then, you call me a sheep for believing in the President when what I said came to pass, that the President did hold back on attempted terrorist attacks, several of them, until it didn't jeopardize American lives to talk about them. The President hasn't acted in a Machiavellian way this time either but again jeopardizes his power and his life in order to protect us, takes a risk of going to jail this time as he'd taken a risk of losing the election last time, a world away from you and Lemieux's suggestion that Bush is interested in power aggrandizement.

Being someone who's open to self examination, I just took the F scale test again, and I got a 1.6, which is far on the opposite end of an authoritarian mindset. In fact, it's on the liberal side of liberal. But what's most interesting is a question about whether we should keep some of the pre-war leadership in Germany (the test was written in 1946) to maintain order. It is interesting that a common staple of the American liberal talking points is how Bush should have kept some of the oppressive Sunni forces who were, after all, just following Saddam's orders, how Bush should have kept them in power to maintain order. When Adorno wrote his facism scale after WWII, apparently it was the authoritarian personalities who espoused that position. Yet you accuse me of an authoritarian mindset.

You and Lemieux's argument that we don't know if wiretaps will actually help our national security is obvious. Any given wiretap may or may not bring us information. But as to what is certain, we certainly won't get information on terrorist attacks from wiretaps if we never use any.

You say Bush violated the law for no reason, because there are few restrictions on FISA wiretaps, but the ones I see could easily be substantial barriers to gaining intelligence. The most obvious one is the restriction of US citizens from such wiretaps (remember Oklahoma City?).

You say maybe these warrants helped prevent the Brooklyn Bridge from being blown up, and then you say that there's been no or little gain in national security from their use. How is blowing up the Brooklyn bridge so inconsequential to you? I can't believe it's conservatives that get accused of being callous. And you continue in that vein by suggesting that there's lots of things that kill more people than terrorists, so why aren't we worried about all those things instead? Which of those exactly do you think wiretaps would help prevent? Is someone going to stop smoking just because a government agent breaks into a phone conversation when they start talking about their smoking, and the federal agent tells them not to smoke? How about they start talking about Ben and Jerry's, so an agent breaks in and tells them about heart risks?

As far as banning tobacco goes, I don't see smoking in the bill of rights, so I'll be happy to support it being banned. You write the proposition and I'll vote for it. Unfortunately, banning firearms would not save any more lives or liberties than it would cost, that's why it's in the Bill of Rights to begin with. I'd like to see the data on how many lives aspirin saves before suggesting we ban it, it's short sighted to presume that banning a thing will save lives without costing any, especially when it's a medicine people take to prevent heart attacks.

What makes terrorism different from almost all the other causes of death you bring up is that it is the intentional destruction of another human being. It's murder, and it's usually murder of many. Almost all cultures in history have found something especially troubling about one human being setting out to take another human being's life. Maybe you're all okay with that idea, but most people aren't. They don't want us to leave just Saudi Arabia, just the Arabian Peninsula. They have designs on controlling the whole world and they don't care if they exterminate everyone who doesn't agree with them. Yet you say I have an authoritarian personality.

Posted by: Morris at December 19, 2005 01:27 AM | PERMALINK

Binky - I don't know what you mean, but the mere prospect that I'd be at all like Hannity has prompted me to delete the entire paragraph that would be the basis of any such comparison (well, that and the fact that it was a top-of-the-head reaction I didn't give more than 2 seconds of thought to).

Posted by: Armand at December 19, 2005 07:42 AM | PERMALINK

Sorry, just a smidgen of snark.

Undelete! Posted by: binky at December 19, 2005 08:31 AM | PERMALINK

Btw, Morris - you do realize you just accused Baltar and the rest of us as being supporters of murder - care to retract that?

I am most definitely NOT a supporter of murder, or killing people generally - one of the reasons I'm strongly against this war.

And you have no evidence at all that killing Iraqis (including the killing of many innocent Iraqi men women and children) has saved American lives. It's just an idea. You can believe it - but not prove it. And a pretty damn strong case can be made that we endangering American lives by continuing to battle in Iraq. And of course as a result of launching this war already 2,100 Americans are dead and over 15,000 injured. Those aren't lives saved by the American president's actions - quite the opposite.

And you do realize that you are making law itself entirely meaningless, right? Giving unfettered power to those who are already powerful is a prescription for horrible abuses - and we've already seen some. Is there anything you think the president can't do because the US has an enemy in the world (as it always has and always will)? Or should we just go ahead and declare an absolute monarchy and shred the Bill of Rights immediately?

Posted by: Armand at December 19, 2005 08:44 AM | PERMALINK

I'm sure the answer to your question will be "no."

However it's one more example of the "with us or against us" strategy. [It seems to be irrelevant - ed.] That none of us are pro-murder, and that in fact the arguments we are making against these policies are because there is no evidence or logic that suggests they actualy work, and that their side effects are worse than the "cure." We are in fact suggesting that there are better ways to stop terrorists and save american lives.

It's the usual. If we were criticizing the administration's lack of support for the hungry, we'd get labeled as wanting children to starve. And then as being authoritarians for wanting it our way instead.

Note, of course, that everyone wants it his way, and that's why democratic pluralism is such a great thing, because we have rules and procedures and separation of powers to make sure no one sneaks around in the dark and makes things his way without consulting the rest of us. And no, winning an election and informing a few Congressmen doesn't amount to obtaining the consent of the governed.

Posted by: binky at December 19, 2005 09:13 AM | PERMALINK


False dichotomy #28,483.

Posted by: norbizness at December 19, 2005 09:16 AM | PERMALINK

I am too! And for the end of America! And eating babies! And roasting puppies! And, and....

Posted by: binky at December 19, 2005 10:00 AM | PERMALINK

What I said is that Baltar's arguing a few murders isn't such a big deal that it justifies any limiting of civil liberties, that the Brooklyn Bridge being blown up would have had little or no effect on national security, that there's nothing worse about people dying from terrorism that there is about people dying from other causes, so that does sound callous to murder, not supportive of it.

There was no more evidence in the late 1930's that Germany would continue to act aggressively than there is international terrorists will continue to act aggressively. Oh, wait, actually there is because the terrorists are really saying they want to continue to kill us where Germany said there were going to stop. There's no evidence Hitler would have continued to exterminate Jews and Gypsies any more than Saddam would have continued to exterminate Kurds and Shia. The evidence for things like this happens after they happen, and it's a bit short sighted to argue that just because the next time hasn't happened yet, we can't predict the next time based on past behavior. We can't be sure, but taking the chance is taking a really big chance. The Supreme Court has ruled during WWII that liberties can be limited during a time of war. And if you think we may as well shred the bill of rights just because of a few hundred wiretaps, go over to North Korea and live for a while, and when you come back tell me if you may have been a little extreme in your position. And yet Binky has the temerity to suggest I'm the one with the with us or against us strategy, to suggest that I'm the one seeing things in black and white.

Baltar suggested that wiretaps were useless (little or no gain to national security) and that there was no evidence any of the wiretaps had actually stopped a terrorist attack, so that's why I make the points that wiretaps have the potential to bring enough intelligence to stop a terrorist attack (the calls made by terrorists before 9/11) and that potential does not exist if we never use them. If you agree that this potential does exist, then it is Baltar's and Lemieux's doubt of a zero sum relationship that if false because they argue that no gain is made toward national security by violating these liberties when if fact experience with wiretaps and with terrorist attacks shows us that these would have helped in the past. So therefore in the past taking them away would have been a net decrease in intelligence, so we have every reason to believe from past experience that we will gain and have gained by their use, even if the President hasn't told us about it yet.

Posted by: Morris at December 19, 2005 10:21 AM | PERMALINK


Short answer: what norbizness said.

Long answer: What the heck are you talking about? This is a remarkably clear problem: under present (FISA) law, if the President wants to wiretap anyone (domestic to international, international to international, or domestic to domestic) he can without a warrant, without waiting. The law requires, however, that a warrant be issued (and, hence, must be applied for) by the special FISA court within 72 hours of actually slapping the wiretap on whatever phone/email/fax line the US government wants to wiretap. That FISA court (according to this table) has only rejected 4 wiretaps since 1980 (out of several thousand applications). This is as close to a rubber-stamp approval process as one can get. Thus, by the law that exists today, there is no restriction on the President's ability to gain information through wiretaps.

But the President, by specific executive order, decided to ignore this law, and wiretap US citizens without going to the FISA court to get a warrant.

Explain two things to me: (A)By what legal authority the President has the right to ignore the FISA law; and (B) Why, given the history of the FISA courts to approve wiretaps and the fact that wiretaps can be gotten with retroactive warrants, it is necessary for the President to order the National Security Agency to act without warrants?

Now, as to the rest of your long essay, I (mostly) have no idea what it has to do with the original post. You think Bush is acting (nobly) to defend freedom and this country. I disagree. As I have stated (and others on this board have stated), Bush sees little check on his powers:

In light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas.(Page 20)

The Administration's legal position is that, given that Bush is Commander-in-Chief of the Armed Forces, and given that we are in a war (not declared by Congress, but asserted by the President), any action by Bush is legal (regardless of the laws) because Bush's authority as Commander-in-Chief is supreme, and any limitation of his authority (by, for example, laws passed by Congress) would limit his authority as Commander-in-Chief, which is clearly unconstitutional. Did you follow that? A shorter version is: Because the Constitution says I'm in charge of the military, and because we were attacked over four years ago, anything I do is legal because I'm in charge.

You are OK with this, Morris? (And remember, if it's OK for Bush, then by definition it will be OK for anyone in the office. So, for example, Hillary Clinton would have exactly these same broad powers.)

I don't know, or care, what an "F scale test" is. I'm glad you scored liberal. Why aren't you acting like one?

And about the Brooklyn Bridge: as I noted above, warrantless wiretaps were unnecessary. The FISA court has approved all but four (and even those were mostly approved with restrictions). How can you claim that warrantless wiretaps prevented this terrorist, when the same information could have been gotten with a warrant?

As to my suggestions about other violations of civil liberties, I think you are playing deliberately stupid. Of course wiretaps have nothing to do with stopping smoking: the point was that if the President is authorized to break laws in order to save lives, then there are many, many laws the President can break that will save many, many more people than this silly warrantless wiretapping. If you are so concerned about saving lives, why aren't you upset over his failure to do the necessary (but illegal) actions to ban smoking, ban guns, or ban alcohol?

Your statement that "banning firearms would not save any more lives or liberties than it would cost" is unsupported by facts. If you would like to cite me evidence that civilians having firearms saves over 29,000 lives a year, then I'll believe you. The (original) facts to not bear out your assertions.

I won't reply to your final paragraph. You are just trolling.

Still sheep.

Posted by: baltar at December 19, 2005 10:24 AM | PERMALINK

no evidence that these measures are helpful? its self-evident. what kind of evidence are you looking for?

Posted by: at December 20, 2005 01:27 AM | PERMALINK

and the trains run on time, too. oh, wait . . .

Posted by: moon at December 20, 2005 09:59 AM | PERMALINK

if you dont think this works then why dont we get rid of FISA courts and alltogether abandon the idea of tapping the phones of potential terrorists inside our country

Posted by: at December 20, 2005 02:22 PM | PERMALINK

Uh, Anonymous, the whole point is that the President should have used the FISA courts in the first place because they are an existing legal way to go about it.

Posted by: binky at December 20, 2005 02:29 PM | PERMALINK
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