I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, September 14, 2006

Libertarians, Conservatives and Warrantless Eavesdropping

I find this so, so interesting and genuinely revealing. Back when he was still a "libertarian" -- a mere 5 years ago -- Glenn Reynolds was vigorously opposed to warrantless surveillance and even shared the view of Judge Anna Diggs Taylor that warrantless surveillance is unconstitutional. Via some excellent research from D-Day, please read and savor what Reynolds said on September 14, 2001 -- 3 days after the 9/11 attacks (emphasis added):

THE SENATE has approved a bill allowing warrantless taps of Internet traffic. This is one of those losses of freedom I was talking about. It may (and should) be ruled unconstitutional. But it shouldn't be passed at all.

Would this have prevented Tuesday's attacks? No, because we didn't know who to tap. Has the FBI wanted this for years anyway, under a variety of excuses (drug dealers, organized crime, kiddie porn, whatever the flavor of the week was)? Yes. Is this bureaucratic opportunism? Yes again.

If the bill can't be stopped, opponents in the House should insist on a sunset provision -- say in two years. If it hasn't proved its usefulness by then, it should be scrapped. But really, it should be scrapped now.

Amazingly, if you follow the link which Reynolds included, you will find that the legislation which so offended his libertarian sensibilities (the "Combating Terrorism Act of 2001") -- and which he said was unconstitutional (presumably on Fourth Amendment grounds) -- provided far, far less surveillance power to the President than the current Specter bill (or the President's NSA program), since all that bill provided was that "prosecutors could authorize surveillance for 48-hour periods without a judge's approval." And the surveillance allowed was restricted to a very narrow category of Internet usage data:

Warrantless surveillance appears to be limited to the addresses of websites visited, the names and addresses of e-mail correspondents, and so on, and is not intended to include the contents of communications. But the legislation would cover URLs, which include information such as what Web pages you're visiting and what terms you type in when visiting search engines.

So that bill -- co-sponsored by Sens. Hatch, Kyl and Feinstein -- merely provided for a 48-hour warrantless surveillance window on a limited amount of data. It did not even allow for surveillance of the content of communications. Yet, to the libertarian Reynolds, it was nonetheless a grave intrusion on liberties and a violation of the Constitutional rights of Americans.

How did Reynolds -- even 3 days after 9/11 (around the time he was saying things like: "Now, if [the President] wants to nuke Baghdad, there is nobody to say him nay -- and damned few who would want to") -- go from finding such limited surveillance powers to be so objectionable (and unconstitutional) to having no apparent problem at all with the full-scale warrantless surveillance which the President has been secretly engaging in for the last five years? [Note also that, back then, Reynolds recognized the obvious truth that warrantless surveillance would not have enabled us to stop the 9/11 attacks, but now never says anything about claims from the White House that the "Terrorist Surveillance Program" might have prevented 9/11].

Relatedly, Mark Steyn denies on his website -- in response to a reader e-mail he received --that he supports "Big Government" abridgments of liberty in order to fight terrorism (emphasis added):


It seems Andrew Sullivan and some guy named Glen Greenwald are taking issue with your example of western weakness, but not actually taking issue with the theme itself. Greenwald puts forth an extremely intelligent and somehow completely backwards take on everything you were trying to say. It really is dizzying. It can be read here. Sullivan's response to your blurb about him here.

Since you've never been one to run from criticism, I'm looking forward to your response. Thanks and big fan always...

Jake - Austin, Texas

MARK REPLIES: I’d respond if there were anything to respond to. But this guy Greenwald’s idea that I want to give away all our freedoms to a big state security apparatus is, as they say in Britain, bollocks on stilts.

I’ve been opposed to “Big Government” solutions to terrorism since the days after 9/11 and I’ve written a lot more on the total pointlessness of the TSA and the DHS and all the rest than either Greenwald or that ninny Sullivan, and did so again on my return from New Zealand, in both National Review and on the Rush show. I’m happy to defend my positions but Greenwald attributes to me views I’ve never held – though I’m fascinated to say these lefties are apparently in favor of Big Government solutions to everything except national security.

Giving the President the power to eavesdrop on American citizens in secret and without judicial oversight, as Steyn eagerly advocates, is exactly the sort of Big Government, extremely intrusive power which conservatives and right-leaning libertarians have always claimed to oppose above all else -- in Reynolds' case even after 9/11. Given that FISA already permits extraordinarily aggressive eavesdropping (which would become even more aggressive under Feinstein-Specter), there is no justification for self-professed conservatives and libertarians to favor warrantless eavesdropping. To know why that is, just go read what Reynolds said about warrantless surveillance.

It really is a sad spectacle to see how many ex-conservatives and libertarians have followed Reynolds' path of completely abdicating their belief system in order to become consumed by blind support even for this President's most authoritarian policies. Only 3 days after 9/11, Reynolds was aggressively protesting even temporary warrantless surveillance as both unnecessary and unconstitutional. Back then, he really did see it exactly how Judge Taylor sees it now.

Yet now, he never utters a peep in protest about the President's secret decision to spy on Americans without any warrants at all, nor does he utter a peep about pending legislation which is about to vest that power expressly in the President. Over the last five years, this creepy, mindless ethos has become predominant among so many Bush supporters whereby nothing is more important than vesting more power in the Executive and rejecting any claims that the Leader has exceeded or abused his power.

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