Yet another gov't abuse: wiretapping

I had hoped to keep my blog at least somewhat free of simple, plain-ol' opinion pieces, but hey, isn't that to some extent what blogs are all about? Well anyway, here are my thoughts on this issue.

Here it is early 2006, and one of the top news stories is Emperor Bush's authorization of wiretaps without a court order. The big question many are asking is, was it legal for him to do so? His defenders and apologists say yes, he can do whatever the hell he wants.

Those concerned about civil liberties, like the ACLU, say he overstepped his authority, and question why he didn't bother to get court orders for the wiretapping. The law provides, after all, that such court orders can be applied for up to 72 hours after the fact, to allow for time-critical wiretaps.

Still others, say that maybe he didn't have the authority, but hey, it's OK because this is all for the sake of fighting terrorism. Terrorists are dangerous, scary people and if we need to bend the Constitution every once in a while, or even drive a Mack truck through it, then hey, we gotta do what we gotta do. After all, the Constitution is just a goddamned piece of paper.

But in questioning the legality of the Emperor's actions, they have missed the bigger picture. The proper question to ask isn't whether Bush had the legal right to authorize wiretaps without court approval, but the moral right. Do the ends justify the means?

Republicans have often touted the importance of the concept of the Rule of Law--that laws are made to be followed, even if you may personally disagree with them, since no one should be above the law. And yet, time and time again, they have shown a willingness, and even eagerness, to trample on the highest law of the land whenever it gets in their way. The Constitution to them is a pretty little showpiece, but something that shouldn't be used in practice because it only gets in the way of law enforcement. This attitude has reared its ugly head repeatedly in the War on Some Drugs, in efforts to ban or regulate the content of expressions (online sites, "porno" magazines, "offensive" books & artwork, etc.), and now, in the hunt for hidden communists--er, terrorists among us.

(In all fairness, yes I realize that Democrats like Clinton, Janet Reno, and many others in the past and present are also guilty of such attitudes and actions. Many have voted eagerly for the War on Some Drugs, the Patriot Act, and on countless other infringements upon our liberties. The erosion of our civil liberties, though, sure seems much more prevalent and forceful on the Repub side.)

Those who think that the gov't can be trusted with warrantless wiretaps, need to study their history a bit more. For decades the gov't has snooped on people and groups for dubious reasons that have nothing to do with national security or public safety, though both are often offered up as excuses. Civil rights groups in particular are favorite targets, as are vocal dissenters. And beyond mere wiretapping and other intelligence-gathering abilities, the gov't has routinely taken an active role in disrupting these grassroots groups. With no real accountability, gov't agencies often embark on missions of politicking, attempts at social engineering, and personal or ideological vendettas. Such activities are often claimed to be in the national interest and/or as legitimate law enforcement functions, when in reality they are neither.

Now, to get a warrant for a wiretap is not all that hard. The gov't has even set aside a special rubber-stamp court for just that purpose. This court has only turned down a tiny handful of warrant requests out of more than 18,000 made, and even those were later granted after resubmission.

When even this rubber-stamp court protests, that should be a good indicator that you're going too far with the surveillance. That's just what the FISA court did, meekly at first, asking for a few of the wiretap requests to be "modified" starting in 2003. (Roughly 5% of the requests.) With the public revelation of Bush's screw-the-courts surveillance of American citizens, one of the court judges finally resigned in protest in late Dec. 2005.

Still, the apologists would argue, these wiretaps aren't for ordinary, law-abiding citizens, just the terrorists. But from the sheer number of requests, the gov't must actually believe there's a terrorist around every corner. Even the FBI itself agrees that these wiretaps have little to do with protecting America from dangerous terrorists. From an article in the N.Y. Times:

"We'd chase a number, find it's a school teacher with no indication they've ever been involved in international terrorism - case closed," said one former FBI official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

And those are just the "useless" leads. The FBI is much less revealing when it comes to wiretaps for political organizations, dissenters, and civil liberties groups. Bush himself did not personally conduct warrantless wiretaps. But there are those who carried out his orders, who did not see enough of a problem with bypassing the courts to raise an issue about it or refuse to carry out what they may well have known to be an illegal activity. Those people are the true "spooks," the inspiration for an entire sub-culture of crackpot conspiracy theorists and genuine freedom fighters alike. Those "spooks" are the same class of people who train Central American death squads, carry out kidnappings for the CIA, hold American citizens without charge and without access to counsel, and who think torture is an acceptable interrogation technique. They are, in short, the American version of the KGB (only much better funded than their Soviet counterparts).

And yet, again, what about the morality of all this? What justification can there be for such Orwellian mass invasions of privacy when public safety is at most an excuse, and often unrelated to it at all?

Nobody in a free society should feel comfortable with the idea that gov't might be monitoring their communications. That so many apparently do, just goes to show how big a carte blanche this country has given its rulers to erode our freedoms for the self-interest of that same gov't. And, it is an indicator that America is not nearly as free as many would like to imagine it to be.

Needless to say, the fact that your letters, emails, phone calls, blogs, and instant messages may be being monitored and recorded for no good reason (or no reason at all), is a pretty good reason why you and everyone else should be using cryptography whenever possible, even for your trivial everyday communications.

Terrorists may scare us and harm us, but only gov't has the power to take away our liberties. Is it rational to argue that lives lost to terrorism could destroy our nation, but loss of privacy and liberties won't? Buildings destroyed can be rebuilt; can we say the same about liberties destroyed?

Addendum: Here's another article dealing with Bush's assumption of dictatorial powers (by his own definition).

Addendum #2: The founder & publisher of Capitol Hill Blue, Doug Thompson's response to an FBI National Security letter demanding personal information about himself, including traffic data & payment records: "Fuck you. Strong letter to follow."

On alternative forms of representative government:Part 3: Safeguarding liberty

(Aack! It's been more than a month since my last post. This one has been sitting half-finished as a draft for most of that time. Will try to be a bit more timely....)

What else can we do to keep gov't from sliding down into despotism, bloated bureaucracy, and corruption?

One good means is strict term limits. No politician should ever feel comfortable in his job, and no elected position should ever be a career for anyone. In recent years I have gone from cautious skepticism of term limits, to embracing it more fully than most--I feel four years is time enough for any elected position, and I might even feel comfortable with just a single two- or three-year term.

Even with a minarchist gov't (though to much less a degree), there will still be those who seek to buy influence with legislators, and plenty of legislators more than willing to sell. Current campaign finance reform efforts seek to limit influence-peddling by stomping on the rights of grassroots organizations to petition the gov't, to elect the candidates of their choice, and even to criticize the gov't. Naturally, those seeking favors from gov't simply sidestep such legislation through loopholes or personal connections, while those with legitimate issues are left out in the cold. So rather than putting the burden on the electorate, we need to place it on the elected. By limiting their time in office, we also limit their ability to form the "good ol' boy" networks and easy-access routes with those wanting to curry favors and influence. Term limits also act to stir up the status quo from time to time, injecting new blood into gov't and softening up the monolithic establishment.

There are some who would protest (as I initially did) that term limits reduces the ability of people to elect whom they desire; why shouldn't a favorite politician be able to be re-elected beyond the limits of his term? Again, the answer to this goes back to the saying that the power to do good is also the power to do harm. In our current electoral system, politicians are re-elected almost automatically, but usually not because they're favored. Rather, because they've stacked the deck against any challengers, and rigged the electoral system. (I'm talking about the system itself, rather than vote fraud.) And, the corrupting power of politics can (and usually does) make any good politician go bad, eventually.

Furthermore, candidates should be a fungible quantity; if you could elect anyone, but can find only one candidate who represents your views, then your views aren't electable. Term limits just means you're electing the ideas, not the specific person who holds them.

Beyond the influence peddling, the corruption, and the abuses of power, one of the worst aspects of gov't is the accumulation of legislation like so much detritus. Laws and taxes and regulations pile up on top of one another until the federal code becomes a byzantine mountain of horrors which can bring down a country by its sheer weight and volume. This is partly because many legislators are bill-happy (passing bills gives them a feeling of accomplishment), but mostly because it is now much harder to get rid of bad or outdated legislation than it was to pass it in the first place.

To this end, a good potential solution would be to have two legislative bodies as we do now, but with a significant change--one makes laws, the other repeals them. The former would need a minimum 2/3 majority to pass any legislation, while the latter would need only 1/3 minority to repeal a law. If this seems like it's stacking the deck against any new legislation, well it is. Any truly good legislation should be able to survive both houses. If it lacks the support, or is unconstitutional in any way, or is an undue burden for some parties, then this will greatly increase the odds that even if it gets passed, it will soon be repealed. (Note: giving credit where it's due, this is another idea straight from Prof. de La Paz in MiaHM.)

Of course, a bill may still be repealed by other means, such as by voter referendum, or if it is found unconstitutional by the judicial branch. There would also be no time limit for the bill-repealing house to act; they could vote to repeal a law as soon as it was passed, or years down the road when its bad effects become truly apparent.

Still, even so it may be possible for some bad legislation to squeak by, perhaps (and especially if) the legislative house gets too chummy or offers "incentives" to the repealing house. So what to do? Have an automatic sunset provision for every law passed. Four years maximum, though a bill could be written with a shorter sunset period. After that time the bill must be voted on again, just as if it were a new bill, or be allowed to die. And, it would be a good idea for bills not to sunset during election years, to avoid their being re-passed based on election-year temperaments of both legislators and voters.

The citizenry should still be allowed to legislate on their own through voter initiatives. Such ballot measures, if passed, would still be subject to sunset provisions, and possible repeal by either judges or the repealing house. (Or, through later successful voter initiatives.)

Even so, sometimes Congress will pass some huge monster of a bill which, because of its perceived "must-pass" status (e.g. defense spending, or a highway appropriations bill), will have all sorts of parasite riders attached to it. To cut down on these, such riders should be able to be voted on individually by the repeal-house and excised thusly. Another possible remedy to riders is to give the president a line-item veto. On this I'm still undecided on though; while it could be a good way for a scrupulous president to cut out pork from an otherwise popular bill, it could also lead to abuses of power when a president decides to veto all parts of a bill by his opponents, leaving only those parts put forth by his own party and thus in effect making any party other than his own, irrelevant.

Another good defense against monster bills, and a good legislative practice on its own, would be to have a strong "Read the Bills Act" (RTBA). Every potential bill to be voted on for passage, must be read in its entirety (no summaries), at a normal speaking speed, before the legislative house. Any legislator wishing to vote for its passage must be present during the entire reading, and in person--simply allowing one of his aides to be present in his place would not be counted. The bill would be read in its entirety all at once, with no breaks for eating, using the washroom, or sleeping. (This would not apply to any legislator wishing to vote against its passage.) While this may seem a bit harsh (you'll excuse me if I'm lacking in pity for the well-being and comfort of those who would be my master), something very similar to this was actually the rule for juries in early America. As it applied to both guilty and innocent-leaning jurors, though, it was done away with to avoid the possibility of a bathroom-inspired quick guilty decision.

Finally, there is the problem of gov't creating many new bureaucracies and agencies which are accountable to no one, in practice if not in theory. One way to make such agencies accountable is to make the job positions electable by the voters rather than appointments of Congress, and every position would have the option of "nobody." If "nobody" gets the most votes (not necessarily a majority of votes), then the job position is eliminated.

Now, here's the real kicker: any registered voter who does not vote for a person to hold a job position in a gov't agency, their vote is counted as "nobody." Thus in order for a Congress-created agency to survive, its members must be approved by a majority of all registered voters, not merely all voters who actually vote for that job position. This would, of course, make it much harder for gov't agencies and bureaucracies to survive at all, and that's the intent. If some function is really all that important, then either the people will vote to have those positions filled, and/or said function will simply be done in the free market by enterprising individuals who see a need to be filled.

This would also have the effect of making gov't employees more humble and responsive to the public.

Note that this last proposal of electing gov't workers probably wouldn't be acceptable in the modern-day U.S. or any other nation, given the huge number of people working in gov't jobs. (Even in America, sadly, the federal gov't is by far the largest employer in the nation. For a free country, this is wrong in so many ways....) Election-day ballots would be nearly as thick as phone books and would take hours to fill out (assuming you actually wanted to vote for all the various positions). If such a system were to be implemented, though, we would see a precipitous drop in bloated gov't (call it "major liposuction with a stomach stapling thrown in"), and transfer of many of the most desired functions to the free market.

There could be some job exceptions made, especially if this is being implemented in a present-day country (as opposed to being implemented from the beginning in a new country). Those in the military would not need to be "voted" in (or to remain in), as the decision whether to join the military should be up to the individual wanting to join, subject to the military's normal qualification process. Some emergency workers might also be exempted, at least until such time as their job can be privatized.

As I have shown with all these ideas, the job of safeguarding the continuing liberty of a society is not something that can be solved with any one proposal. It is, however, one of the most important jobs that we, as a society and as individuals, can partake in.