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Give Me Liberty or Give Me…Oh, Uh, Nevermind…

Yale Constitutional Law Professor Jack Balkin has an excellent post on what he calls the National Survellience State. I highly recommend reading the whole thing, but here are some of the key points:

The National Surveillance State poses two distinct dangers. The first is that the executive’s power to conduct war will displace the area previously assumed to fall within the criminal justice system. Hence the Executive increasingly has the choice to treat dangers within the United States as matters of war and national security rather than as matters of crime and criminal justice. The latter, but not the former, come with a series of traditional civil liberties protections that constrain and check the Executive. If the government can create a parallel law enforcement structure that routes around the traditional criminal justice system, and which is not subject to the oversight and restrictions of the criminal justice system, it may be increasingly tempted to make use of that parallel system for more and more things…

…As the laws of war encroach on the criminal law, and the needs of national security encroach on domestic criminal law enforcement, the government will be increasingly tempted to take the path of least resistance– and least accountability– and choose to treat individuals within the United States as subject to intelligence, interdiction, incarceration, interrogation, and punishment under the aegis of national security rather than criminal procedure.

The second danger of the National Surveillance State is not that the criminal justice system will increasingly be displaced by a parallel track of military and national security enforcement, but that the criminal justice system will become increasingly like the parallel track, that is, that it will lose the civil liberties protections, checks and balances, and oversight by independent actors (e.g., judges) that we normally associate with the criminal process in the United States…[An] example is the increasing use of preventive detention, indefinite detention of material witnesses, administrative warrants and National Security Letters. These strategies modify the previous understandings of the criminal justice system and allow the executive to detain and engage in surveillance without the usual civil liberties limitations, checks, and oversight.

…As William Arkin wrote recently in his Washington Post column, “tomorrow, there could be an illegal immigrant tax and pay record monitoring tip-off system, a sexual predator and pornography attention algorithm, a drug dealing and buying behavior inconsistency profile.” That is to say, if the information gleaned from the government’s national security wing is transferred over to its law enforcement wing (and shared with state and local law enforcement authorities) criminal law enforcement will be transformed into increasing surveillance of ordinary Americans to prevent not only the most serious threats to national security, but also everyday crimes, including even misdemeanors and administrative infractions.

…That is why the debate over the NSA program is so incredibly important. We need to have a national debate on how we will implement a system of information gathering and processing that is quickly becoming the norm and not the exception. If we do not have this debate, the system will be implemented so as to displace the civil liberties and rights of citizenship we hold dear.

A common response to those who raise these kinds of concerns is that we just can’t afford these civil liberties anymore in the post 9/11 world. Matt Yglesias perfectly sums up what’s so misguided about that attitude:

“I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties,” Senator Pat Roberts (R-Kansas) remarked at yesterday’s Hayden confirmation hearings, “but you have no civil liberties if you are dead.” This comes via Dave Weigel and nicely encapsulates at least three different pieces of horribly misguided rightwingery.

First off is the sheer cowardice of it. Sure, liberal democracy is nice, but not if someone might get hurt. One might think that strong supporters of civil liberties would be willing to countenance the idea that it might be worth bearing some level of risk in order to preserve them.

Second is just this dogmatic post-9/11 insistence on acting as if human history began suddenly in 1997 or something. The United States was able to face down such threats as the Soviet Union and Nazi Germany without indefinite detentions, widespread use of torture as an interrogative technique, or all-pervasive surveillance. But a smallish group of terrorists who can’t even surface publicly abroad for fear they’ll be swiftly killed by the mightiest military on earth? Time to break out the document shredder and do away with that pesky constitution.

Last, there’s the unargued assumption that civil rights and the rule of law are some kind of near-intolerable impediment to national security. But if you look around the world over the past hundred years or so, I think you’ll see that the record of democracy is pretty strong. You don’t see authoritarian regimes using their superior ability to operate in secret and conduct surveillance to run roughshod over more fastidious countries. You see liberalism prospering — both in the sense that the core liberal countries have grown richer-and-richer and in the sense that liberal democracy has consistently spread out from its original homeland since people like it better. You see governments that can operate in total secrecy falling prey to crippling corruption. You see powers of surveillance used not to defend countries from external threats, but to defend rulers from domestic political opponents.

The U.S.S.R., after all, lost the Cold War, not because we beat them in a race to the bottom to improve national security by gutting the principles of our system, but because the principles underlying our system were actually better than the alternative. If you don’t have some faith the American way of life is capable of coping with actual challenges, then what’s the point in defending it?

The one question Matt doesn’t address is how to face 21st century national security threats and still maintain civil liberties. That is, without widespread surveillance and data mining, how do you catch terrorists, who use our civil liberties to hide themselves and their plans? There are bleeding-edge ideas like my own proposal a while back for what I called open-source counter-terrorism. But there are also more conventional approaches, like the one that started under the Clinton administration but was scrapped by Bush:

The National Security Agency developed a pilot program in the late 1990s [called ThinThread] that would have enabled it to gather and analyze huge amounts of communications data without running afoul of privacy laws. But after the Sept. 11 attacks, it shelved the project – not because it failed to work but because of bureaucratic infighting and a sudden White House expansion of the agency’s surveillance powers, according to several intelligence officials…

In what intelligence experts describe as rigorous testing of ThinThread in 1998, the project succeeded at each task with high marks. For example, its ability to sort through huge amounts of data to find threat-related communications far surpassed the existing system, sources said. It also was able to rapidly separate and encrypt U.S.-related communications to ensure privacy.

But the NSA, then headed by Air Force Gen. Michael V. Hayden, rejected both of those tools, as well as the feature that monitored potential abuse of the records. Only the data analysis facet of the program survived and became the basis for the warrantless surveillance program.

The decision, which one official attributed to “turf protection and empire building,” has undermined the agency’s ability to zero in on potential threats, sources say. In the aftermath of revelations about the agency’s wide gathering of U.S. phone records, they add, ThinThread could have provided a simple solution to privacy concerns.

It’s perfectly possible to develop hi-tech systems that provide security just as well as, if not better than, what we currently have under the Bush administration, and not sacrifice the Bill of Rights in the process. The notion that we must choose between liberty and security is a false argument, used primarily as a fear-mongering tactic to further expand Presidential authority. It’s also perfectly possible to protect such surveillance systems from abuse, but that would require at least one of the following: a law abiding President, a vigilant Congress, and/or a press with the motivation and skill to explain the issues coherently. Unfortunately, we don’t have any of those three things right now.

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