{"id":582,"date":"2013-06-12T06:00:43","date_gmt":"2013-06-12T10:00:43","guid":{"rendered":"http:\/\/www.dougsbriefcase.com\/blog\/?p=582"},"modified":"2013-06-12T07:04:02","modified_gmt":"2013-06-12T11:04:02","slug":"can-you-hear-me-now-the-limits-of-government-power","status":"publish","type":"post","link":"https:\/\/www.dougsbriefcase.com\/blog\/can-you-hear-me-now-the-limits-of-government-power\/","title":{"rendered":"Can You Hear Me Now? The Limits of Government Power"},"content":{"rendered":"
\n
\"The<\/a>

The Pres\u00adi\u00addent assures us that no one is lis\u00adten\u00ading to our calls, but does that set\u00adtle the debate?<\/p><\/div>\n

\u201c<\/span>Progress does not com\u00adpel us to set\u00adtle cen\u00adturies-long debates about the role of gov\u00adern\u00adment for all time, but it does require us to act in our time. For now deci\u00adsions are upon us and we can\u00adnot afford delay. We can\u00adnot mis\u00adtake abso\u00adlutism for prin\u00adci\u00adple, or sub\u00adsti\u00adtute spec\u00adta\u00adcle for pol\u00adi\u00adtics, or treat name-call\u00ading as rea\u00adsoned debate. We must act, know\u00ading that our work will be imper\u00adfect. We must act.\u201d<\/p>\n

Pres\u00adi\u00addent Oba\u00adma, Sec\u00adond Inau\u00adgur\u00adal Address<\/a>,<\/span> Jan\u00adu\u00adary 21, 2013.<\/p><\/blockquote>\n

\u201c<\/span>Progress\u201d requires the gov\u00adern\u00adment, above all else, to act, the Pres\u00adi\u00addent told us in his Sec\u00adond Inau\u00adgur\u00adal. Even imper\u00adfect gov\u00adern\u00adment action is prefer\u00adable to debates about government\u2019s prop\u00ader role. Adher\u00adence to prin\u00adci\u00adple about the lim\u00adits of gov\u00adern\u00adment is a form of abso\u00adlutism, a kind of polit\u00adi\u00adcal spec\u00adta\u00adcle akin to name-call\u00ading. We can\u00adnot afford delay, the Pres\u00adi\u00addent told us. The gov\u00adern\u00adment must act.<\/p>\n

And act it has.<\/p>\n

The IRS<\/span><\/a> has act\u00aded to hob\u00adble the First Amend\u00adment rights of the President\u2019s crit\u00adics to law\u00adful\u00adly orga\u00adnize and express their griev\u00adances against the gov\u00adern\u00adment, the DOJ<\/span> has act\u00aded to impair the First Amend\u00adment rights of reporters by mon\u00adi\u00adtor\u00ading their phone lines and alleg\u00ading before judges that their report\u00ading is felo\u00adnious<\/a>,<\/span> and the NSA<\/span> has brushed aside Fourth Amend\u00adment con\u00adcerns against unrea\u00adson\u00adable search\u00ades and seizures by com\u00adpil\u00ading mas\u00adsive records of our phone calls<\/a>. Such are the fruits of gov\u00adern\u00adment that believes it must, \u201cabove all else,\u201d act.<\/p>\n

In view of these actions, per\u00adhaps it\u2019s worth revis\u00adit\u00ading that cen\u00adturies-long debate about the role of gov\u00adern\u00adment that the Pres\u00adi\u00addent so light\u00adly dis\u00admissed on that cold Jan\u00adu\u00adary morning.<\/p>\n

The bias for action that the Pres\u00adi\u00addent expressed isn\u2019t mere\u00adly his per\u00adson\u00adal pref\u00ader\u00adence. It is a char\u00adac\u00adter\u00adis\u00adtic of gov\u00adern\u00adment. Even a gov\u00adern\u00adment mired in grid\u00adlock, we have learned, is busy doing a mil\u00adlion things, some of them dis\u00adtaste\u00adful and con\u00adsti\u00adtu\u00adtion\u00adal\u00adly dubious.<\/p>\n

Gov\u00adern\u00adment has enor\u00admous pow\u00ader and that pow\u00ader is being exer\u00adcised dai\u00adly, not exclu\u00adsive\u00adly or even pri\u00admar\u00adi\u00adly by Pres\u00adi\u00addents and Mem\u00adbers of Con\u00adgress, but by mil\u00adlions of Exec\u00adu\u00adtive Branch employ\u00adees who wield the pow\u00ader that gov\u00adern\u00adment has amassed. That, in essence, is the Administration\u2019s defense<\/a> in scan\u00addals sur\u00adround\u00ading the IRS<\/span>: low-lev\u00adel career employ\u00adees of the IRS<\/span> conglomerate\u2019s Cincin\u00adnati branch decid\u00aded on their own to tar\u00adget con\u00adser\u00adv\u00ada\u00adtive groups. Mean\u00adwhile, anoth\u00ader group of that agency\u2019s employ\u00adees orga\u00adnized lav\u00adish par\u00adties<\/a> on which they squan\u00addered tens of mil\u00adlions of dollars.<\/p>\n

If even the Pres\u00adi\u00addent doesn\u2019t know what\u2019s going on in the branch of gov\u00adern\u00adment that he runs, could that be a sign that gov\u00adern\u00adment has got\u00adten too big?<\/p>\n

Pres\u00adi\u00addent Oba\u00adma did not invent big gov\u00adern\u00adment. It is the prod\u00aduct of decades of deci\u00adsions by Pres\u00adi\u00addents, Con\u00adgress\u00admen and judges of all polit\u00adi\u00adcal per\u00adsua\u00adsions. If Democ\u00adrats are more like\u00adly to expand the government\u2019s pow\u00ader to tax and to cre\u00adate enti\u00adtle\u00adment pro\u00adgrams, Repub\u00adli\u00adcans are more like\u00adly to increase mil\u00adi\u00adtary spend\u00ading and to enlarge the pow\u00ader of intel\u00adli\u00adgence agen\u00adcies. Togeth\u00ader, they have built a colossus.<\/p>\n

The founders may nev\u00ader have envi\u00adsioned that result, but they well under\u00adstood the impulse that pro\u00adduced it. Gov\u00adern\u00adments are not self-restrain\u00ading; they for\u00adev\u00ader seek to enlarge their pow\u00ader. The founders sought to sup\u00adpress this impulse by writ\u00ading a Con\u00adsti\u00adtu\u00adtion that both cre\u00adat\u00aded a fed\u00ader\u00adal gov\u00adern\u00adment and con\u00adstrained its author\u00adi\u00adty. Their goal was to enable a free peo\u00adple to estab\u00adlish a gov\u00adern\u00adment that would not cur\u00adtail its people\u2019s freedom.<\/p>\n

Their efforts have yield\u00aded mixed results. The founders them\u00adselves tol\u00ader\u00adat\u00aded slav\u00adery, an insti\u00adtu\u00adtion whose nefar\u00adi\u00adous effects still have not been entire\u00adly expunged. And the gov\u00adern\u00adment they sought to restrain has nonethe\u00adless grown at the expense of indi\u00advid\u00adual liberty.<\/p>\n

The Pres\u00adi\u00addent sees this as a mark of progress. In his sec\u00adond inau\u00adgur\u00adal, he called on us to under\u00adstand the Dec\u00adla\u00adra\u00adtion of Independence\u2019s famil\u00adiar Lock\u00adean embrace of \u201clife, lib\u00ader\u00adty and the pur\u00adsuit of hap\u00adpi\u00adness\u201d as mean\u00ading that col\u00adlec\u00adtive action (which he uses as a short\u00adhand for gov\u00adern\u00adment action) is foun\u00adda\u00adtion\u00adal to indi\u00advid\u00adual freedom.<\/p>\n

\u201c<\/span>Today we con\u00adtin\u00adue a nev\u00ader-end\u00ading jour\u00adney to bridge the mean\u00ading of those words with the real\u00adi\u00adties of our time. But we have always under\u00adstood that when times change, so must we; that fideli\u00adty to our found\u00ading prin\u00adci\u00adples requires new respons\u00ades to new chal\u00adlenges; that pre\u00adserv\u00ading our indi\u00advid\u00adual free\u00addoms ulti\u00admate\u00adly requires col\u00adlec\u00adtive action.\u201d<\/p>\n

This, of course, is the oppo\u00adsite of what the founders intend\u00aded. They believed that indi\u00advid\u00adual free\u00addoms were antecedent to gov\u00adern\u00adment and that gov\u00adern\u00adment put those free\u00addoms at risk. The con\u00adsti\u00adtu\u00adtion\u00adal project involved shield\u00ading indi\u00advid\u00adual free\u00addoms from the threat of col\u00adlec\u00adtive action by the gov\u00adern\u00adment. But times have changed, the Pres\u00adi\u00addent said. Bridg\u00ading \u201cthe mean\u00ading of those words with the real\u00adi\u00adties of our time\u201d leads him to con\u00adclude that our indi\u00advid\u00adual free\u00addom now depends on col\u00adlec\u00adtive (i.e., gov\u00adern\u00adment) action.<\/p>\n

So it comes as no sur\u00adprise when Pres\u00adi\u00addent Oba\u00adma, like Pres\u00adi\u00addent Bush before him, argues that gov\u00adern\u00adment must encroach on our lib\u00ader\u00adties to pre\u00adserve them. He defend\u00aded two clas\u00adsi\u00adfied pro\u00adgrams. The first, called PRISM<\/span><\/a>,<\/span> col\u00adlects the emails, file trans\u00adfers and oth\u00ader infor\u00adma\u00adtion from major inter\u00adnet com\u00adpa\u00adnies on per\u00adsons, so long as the agency is 51 per\u00adcent cer\u00adtain of the \u201cfor\u00adeign\u00adness\u201d of those per\u00adsons.  The sec\u00adond com\u00adpiles the phone records <\/a>of tens of mil\u00adlions Amer\u00adi\u00adcan cell\u00adphone users  Accord\u00ading to the Pres\u00adi\u00addent, these pro\u00adgrams con\u00adsti\u00adtute \u201c<\/span>mod\u00adest encroach\u00adments on privacy.\u201d<\/a><\/p>\n

\u201c<\/span>It\u2019s impor\u00adtant to rec\u00adog\u00adnize,\u201d the Pres\u00adi\u00addent also said, \u201cthat you can\u2019t have 100 per\u00adcent secu\u00adri\u00adty and also then have 100 per\u00adcent pri\u00adva\u00adcy and zero inconvenience.\u201d<\/p>\n

That state\u00adment is both self-evi\u00addent and unhelp\u00adful. But let\u2019s think it through a bit. I\u2019ll ignore the insult\u00ading phrase \u201czero incon\u00adve\u00adnience\u201d and make two points. The first and most obvi\u00adous is that the gov\u00adern\u00adment has not \u2013 and can\u00adnot \u2013 deliv\u00ader \u201c100 per\u00adcent secu\u00adri\u00adty.\u201d There have been three ter\u00adror\u00adist attacks on Amer\u00adi\u00adcans dur\u00ading Pres\u00adi\u00addent Obama\u2019s tenure so far \u2013 Fort Hood, Beng\u00adhazi and Boston.<\/p>\n

There is a sec\u00adond flaw in the President\u2019s 100 per\u00adcent safe\u00adty vs. 100 per\u00adcent pri\u00adva\u00adcy for\u00admu\u00adla\u00adtion. He is, in essence, argu\u00ading that if we\u2019re will\u00ading to yield some of our pri\u00adva\u00adcy in exchange for secu\u00adri\u00adty, then we should be will\u00ading to yield as much of it as the gov\u00adern\u00adment choos\u00ades to take. That is sim\u00adply not the case. There are lines the gov\u00adern\u00adment can\u00adnot cross, even in pur\u00adsuit of security.<\/p>\n

The Pres\u00adi\u00addent assures us that the gov\u00adern\u00adment hasn\u2019t crossed one poten\u00adtial line, by eaves\u00addrop\u00adping on our cell\u00adphone con\u00adver\u00adsa\u00adtions. \u201c<\/span>Nobody is lis\u00adten\u00ading to your tele\u00adphone calls,\u201d<\/a> he said.  It\u2019s a good polit\u00adi\u00adcal move on his part, since polls show that the pub\u00adlic is divid\u00aded <\/a>in its views on the government\u2019s col\u00adlec\u00adtion of their phone records, but would like\u00adly strong\u00adly oppose the gov\u00adern\u00adment record\u00ading their calls.<\/p>\n

I take him at his word when he says that the gov\u00adern\u00adment isn\u2019t lis\u00adten\u00ading in on our phone con\u00adver\u00adsa\u00adtions. If noth\u00ading else, I can\u2019t imag\u00adine that it has the tech\u00adni\u00adcal capac\u00adi\u00adty to do so. But it\u2019s impor\u00adtant to note that the Pres\u00adi\u00addent did not<\/strong> say it would be unlaw\u00adful or uncon\u00adsti\u00adtu\u00adtion\u00adal for the gov\u00adern\u00adment to make such record\u00adings. He has so far declined to tell us what he thinks the appro\u00adpri\u00adate lim\u00adits of gov\u00adern\u00adment are. It is time that he and Con\u00adgress spelled that out.<\/p>\n

In seek\u00ading to define those lim\u00adits, I would pro\u00adpose that they begin with the Fourth Amend\u00adment<\/a>:<\/p>\n

\u201c<\/span>The right of the peo\u00adple to be secure in their per\u00adsons, hous\u00ades, papers, and effects, against unrea\u00adson\u00adable search\u00ades and seizures, shall not be vio\u00adlat\u00aded, and no War\u00adrants shall issue, but upon prob\u00ada\u00adble cause, sup\u00adport\u00aded by Oath or affir\u00adma\u00adtion, and par\u00adtic\u00adu\u00adlar\u00adly describ\u00ading the place to be searched, and the per\u00adsons or things to be seized.\u201d<\/p>\n

I am by no means a legal expert and I know that the Fourth Amend\u00adment has giv\u00aden rise to a very com\u00adplex and still evolv\u00ading body of case law, but the prin\u00adci\u00adple here seems straight\u00adfor\u00adward and sound: I have a right to expect that the gov\u00adern\u00adment isn\u2019t snoop\u00ading into my per\u00adson, house, papers and effects [includ\u00ading tele\u00adphone records]; if the gov\u00adern\u00adment wants to gath\u00ader infor\u00adma\u00adtion about me, they need to get a war\u00adrant, which requires them to swear or affirm that they have prob\u00ada\u00adble cause to believe that I\u2019m involved in some\u00adthing shady; and that war\u00adrant has to be par\u00adtic\u00adu\u00adlar to me and the stuff they\u2019re look\u00ading for.<\/p>\n

That last point is crit\u00adi\u00adcal, in my view, because the gov\u00adern\u00adment report\u00aded\u00adly obtained a war\u00adrant to col\u00adlect our phone records from the For\u00adeign Intel\u00adli\u00adgence Sur\u00adveil\u00adlance Court <\/a>(FISC<\/span>), a secret body that reviews requests from intel\u00adli\u00adgence offi\u00adcials.  The Fourth Amend\u00adment requires that war\u00adrants be spe\u00adcif\u00adic, but that court issues war\u00adrants<\/a> autho\u00adriz\u00ading intel\u00adli\u00adgence offi\u00adcials to col\u00adlect infor\u00adma\u00adtion about peo\u00adple who are not sus\u00adpect\u00aded of any crime.<\/p>\n

Just how rou\u00adtine\u00adly does FISC<\/span> grant gov\u00adern\u00adment requests? Accord\u00ading to an analy\u00adsis by Salon<\/a>,<\/span> very rou\u00adtine\u00adly indeed.  Since 2001, the FISC<\/span> court has reject\u00aded a total of just 10 appli\u00adca\u00adtions, while approv\u00ading thou\u00adsands. It denied just one appli\u00adca\u00adtion in 2009 and approved 1320. Since then, it has not denied a sin\u00adgle one. It approved all 3,983 appli\u00adca\u00adtions sub\u00admit\u00adted from 2010 through 2012. That sug\u00adgests to me, at least, that FISC<\/span> has failed to strike an appro\u00adpri\u00adate bal\u00adance, par\u00adtic\u00adu\u00adlar\u00adly when it approves appli\u00adca\u00adtions that are not spe\u00adcif\u00adic to per\u00adsons sus\u00adpect\u00aded of ille\u00adgal activity.<\/p>\n

It also sug\u00adgests to me that, despite what the Pres\u00adi\u00addent said last Jan\u00adu\u00adary, it might actu\u00adal\u00adly be help\u00adful to re-engage in the \u201ccen\u00adturies-long debates about the role of gov\u00adern\u00adment.\u201d Maybe it\u2019s time to require the gov\u00adern\u00adment to think a bit more before it acts, rather than yield\u00ading to the con\u00adceit that it must act con\u00adstant\u00adly and with\u00adout suf\u00adfi\u00adcient regard to our lib\u00ader\u00adties because \u201cwe can\u00adnot afford delay.\u201d<\/p>\n

We could use a lit\u00adtle delay, a lit\u00adtle recon\u00adsid\u00ader\u00ada\u00adtion, debate and reflec\u00adtion about how to strike a more appro\u00adpri\u00adate bal\u00adance between indi\u00advid\u00adual lib\u00ader\u00adty and gov\u00adern\u00adment pow\u00ader. I have no illu\u00adsions about how this debate might turn out. Con\u00adcerns with the NSA<\/span>\u2019s activ\u00adi\u00adties seem to be the pre\u00adoc\u00adcu\u00adpa\u00adtion of what Politi\u00adco calls \u201c<\/span>Lib\u00ader\u00adal-tar\u00adi\u00adans\u201d <\/a>\u2013 an unusu\u00adal col\u00adlec\u00adtion of pro\u00adgres\u00adsive Democ\u00adrats and lib\u00ader\u00adtar\u00adi\u00adan Repub\u00adli\u00adcans like Rand Paul (R\u2011KY<\/span>) and Mike Lee (R\u2011UT<\/span>). Lead\u00aders of both par\u00adties, like the Pres\u00adi\u00addent, are so far stick\u00ading with the NSA<\/span>.<\/p>\n

It\u2019s a debate nonethe\u00adless worth having.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201c<\/span>Progress\u201d requires the gov\u00adern\u00adment, above all else, to act, the Pres\u00adi\u00addent told us in his Sec\u00adond Inau\u00adgur\u00adal. We can\u00adnot afford delay, the Pres\u00adi\u00addent told us. The gov\u00adern\u00adment must act.
\nAnd act it has.
\n Con\u00adtin\u00adue read\u00ading \u2192<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":583,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","wp_typography_post_enhancements_disabled":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"nfd_image_url":"","nfd_onboarding_generated":"","footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[158,19,157],"tags":[1189,270,224,267,275,274,273,269,118,54,277,279,1191,47,127,272,278,271,276],"class_list":["post-582","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-national-security","category-politics","category-terrorism","tag-benghazi","tag-democrats","tag-doj","tag-first-amendment","tag-fisc","tag-foreign-intelligence-surveillance-court","tag-fort-hood","tag-fourth-amendment","tag-house-republicans","tag-irs","tag-liberal-tarians","tag-mike-lee","tag-nsa","tag-obama","tag-politico","tag-prism","tag-rand-paul","tag-republicans","tag-salon-com"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t