19 | June | 2013

After reading some of the arguments on the civil libertarian side of this debate, I came away with a sense of a loss of balance on the issue. I agree with their idea that fear has been used since the Bush administration to justify many of its policies including rationalizations for wars, expansion of surveillance and targeting of enemy combatants, detention without trial and torture. I did not like the Patriot Act and the expansion of FISA (Foreign Intelligence Surveillance Act of 1978) powers with major legislation in 2001, 2005, 2006, and 2011 (although there was legislation almost every year since 2001). However, I understood the rationale for these actions. I do believe that these laws which can potentially restrict privacy could be dangerous. However, potential is not actual. I, and I think most Americans, are more willing to risk privacy if it prevents terrorist acts.

I also know that we cannot all be arbiters of the balance between privacy and security which is why we elect politicians to make those judgment calls for us. I did not elect a 29 year old kid to make those judgments and I despise him invalidating my political decisions. When he made the statement that he “wanted the public to decide” he conveniently left out the fact that the public already decided. We decided with our vote. Snowden disagreed with our decision and illegally made his own decision which violated our decision. The way we decide in a representative democracy is with our vote for leaders that decide for us. Snowden unilaterally took my decision away by revealing classified data. His decision invalidated mine and broke the law. He may fancy himself as a liberator but the concept of representative democracy embodied in the U.S. Constitution is incompatible with anarchy. Political anarchy only recognizes the law of individuality, the power of the individual to be their own lawgiver. In a representative democracy we elect representatives to make laws. Anyone who defends Snowden’s actions should also reconcile the inconsistencies in their political loyalties between representative democracy and anarchy.

I reserve the word whistleblower for those that reveal illegal or dishonest behavior in an organization. If a whistleblower performs illegal activities they are not a whistle blower they are a criminal. My wife and I in the past have had access to secret and top secret information and we would never think about revealing that information to anyone, even to each other. Personally, I think much of the classified information I have seen does not justify any secret classification but that is NOT my decision to make. Anyone that has access to secret information has to contractually promise and sign forms NOT to disclose that information. This is a matter of personal integrity. I have no respect for those that violate their oath and head for a foreign country to avoid prosecution. I call these folks traitors.

I have to admit that I do not like being manipulated by fear. I felt this strongly in the Bush administration. I do not feel this in the Obama administration. I understand that I am a partisan, at least with regard to the nouveaux Republicans, which may totally account for this difference. If there is any legitimacy to this feeling it would have to rest on the claim that more checks and balances against unnecessary privacy invasions have been implemented in the Obama administration. There is no way to prove this except to go into the actual major legislation pertaining to privacy and security which has been adopted by our elected and politicians and has been made public. I suppose there could be an evil genius behind the scenes fooling us all but I did not believe that in the Bush administration and I do not buy it now…you can’t prove a negative but you can react emotively to it.

I think that Dr. Kisner lays out a very good argument for a real and pertinent issue with a “state of exception” styled government in this paper. I am more concerned with a continuing state of exception in government than an evil genius motif about the Federal Government. I think the evil genius idea of the Federal Government and the unbridled fear of terrorist attacks which always justify a state of exception to existing laws (and in this case privacy laws), free from checks and balances, is much more of a danger to our democracy.

If we do not enforce our laws but change or judgments willy-nilly we do not have any laws. It is not up to any one person to decide they will or will not obey a law and that the law should not apply to them. If laws mean nothing we have anarchy. It may be, as the anarchists claim, that the tribal organization of culture would result in more just and humane behavior but I think that is an unjustified ideal based on history (Afghanistan comes to mind but there are many other examples). In any case, this is not what the U.S. constitution is all about. Libertarians that go this far should not delude themselves that they are patriots.

Republicans in the House and Senate were just accusing the Obama administration on hearing about what is going on with Federal Government through the press but now that the Patriot Act and its expansions are making the news they are telling us that they are just hearing about all this through the news. I guess what is good for the goose is not good for the gander. The Republicans are telling us that they were not briefed as President Obama has claimed. They are just finding out about all this, right? There is no excuse for any politician claiming ignorance on these matters. All of these laws have been enacted over the last 11 years and are public record. Additionally, they have access to secret information we do not have access to. If they claim ignorance in light of this, they are really claiming incompetence and that is the problem of the voters that put them in office.

Additionally, if folks have an expectation of privacy on the internet they are naïve about how the internet works. All information on the internet is thrown into packet buckets accessible to anyone. There may be encoding that encrypts this data but security code can and has been broken. Cyber security is a major problem with the internet apart from any issues with the Federal Government. Also, private companies already have access to user accounts and can and do use it for whatever purposes they want including, at times, intentionally or non-intentionally, clandestine or unethical purposes. It seems to me that the potential for abuse by private companies is not different than for the Federal Government. We should hold both public and private organizations responsible to the laws and check and balances made by the politicians we elect.

It seems that a balance needs to be struck between privacy concerns and preventing terror attacks. If we do not get this right, the worst case scenario is mass murders and not privacy concerns. The abuses we have seen of government authority in the past (J Edgar Hoover and Nixon come to mind) has been when the power was concentrated narrowly in one or a few people and no real checks and balances were in place to prevent abuse.

The original Patriot Act of 2001 allowed “warrantless” wiretaps including “roving wiretaps”, of private and business records including internet and phone searches for national security purposes (called National Security Letters, NSL) without court approvals (FISA).¹ Delayed notice warrants, also called sneak and peak warrants, allowed searches and wiretaps that were essentially warrantless (this was struck down by the court in 2007). They were temporary and stipulated that no evidence could be seized. These warrants were criticized at the time as a violation of the 4^th Amendment of the U.S. Constitution. Trap and trace which allowed phone calls to be tracked was also authorized at this time. The USA PATRIOT Improvement and Reauthorization Act of 2005 and The Patriot Act Renewal of 2006 made permanent the temporary authorization of the original Patriot Act.² The FISA Sunsets Extension Act of 2011 and PATRIOT Sunsets Extension Act of 2011 vastly increased the checks and balances in these original laws. It included and attempt to outlaw NSLs which had been struck down by the courts. It also included more congressional oversight for trap and trace.

One other thing to take note of…if you are really concerned with civil liberties you will find below that the Democrats have a better voting record, in terms of no votes and percentages (see endnotes), on these issues contrary to current public opinion of many Republicans and Libertarians.

Here is the public voting record on major legislation:

Patriot Act 2001 Final Votes of House and Senate:³