Beauty of Gray

Wednesday, August 07, 2002

Civil Liberties and the War on Terror

For the most part, I have been skeptical of the concerns expressed from both sides about the erosion of civil liberties by the War on Terror. For the most part, I thought these were slippery slope arguments at best and simple paranoia at worst. Apparently, I was wrong.

The Justice Department has now attempted to repudiate the fundamental right of due process and are refusing to even discuss with a Federal judge the case of a US citizen held as an enemy combatant. This is outrageous. Ashcroft (and a decision this important was certainly vetted by him, if not by the President) is now claiming that the US government has, or should have, the right to lock up any US citizen for any time they like, without the presentation of any evidence or a court appearance. If they claim that you are an enemy combatant, then you have no right to due process, or any other rights, for that matter.

Now, I’m not opposed to dealing with foreign nationals captured in Afghanistan in a special, extra-judicial way. They truly are prisoners of war, whether we want to call them that or not, and as non-citizens, they are not necessarily entitled to the full protection of US Constitutional rights. However, a US citizen is another story. Regardless of the circumstances of his capture or the nature of the accusations against him, Hamdi should be entitled to due process. There is no reason not to give it to him.

It’s noteworthy that the Justice Department has failed to present any rationale for their refusal to comply with the judge’s order in this case, beyond claiming “you can’t make me do it! Nyah, nyah, nyah!” If they had a good reason, I’d be willing to listen to it. But they apparently don’t, so it’s hard to reach any other conclusion than that the Justice Department wishes to erode one of the most fundamental rights of US citizens.

Link posted by Doug Turnbull at 9:19 AM

Tuesday, August 06, 2002
Secrets, Lies, and Polygraphs

I’ve run across several critical responses to the FBI investigating Congress for leaks of secret (technically, it was almost certainly Top Secret, for what it’s worth) intelligence intercepts prior to September 11. Joshua Marshall covers all the bases in several posts, although I first saw the main line of argument from Kevin at

There is a valid concern here, but I think these sharp critiques are an over-reaction, and either miss or minimalize two vital points. The main argument against the FBI action is that investigating those Congresspeople that are, at the same time, investigating the FBI for its failures leading up to September 11 will have a chilling effect on that investigation. Marshall also says that, well, leaks happen, so it’s silly to get worked up about it, and why this one out of all the leaks?

Taking these one at a time—will the FBI investigation deter the congressional investigation? I’m skeptical of this point; in fact, far from cowing them, I’d think pissing off a powerful senator could make the investigation much more acrimonious. But say we grant that point. Why does it matter? The fundmanetal principle here is public overview of intelligence activities.

Any democratic society has a problem when it comes to dealing with sensitive information. For intelligence gathering to be effective, much of it, and all of the means used to gather it, must be kept secret. But if they’re kept secret, then the public has no way to judge their effectiveness, and hence the intelligence activities become divorced from democratic feedback. The compromise that the US (and I assume most other countries) has is that elected officials, both in the executive and the legislative branch, are granted oversight. Basically, a select few officials, who are elected and hence, in theory, represent the public, are chosen to watch over the FBI, CIA, and everyone else.

It’s this set-up that Marshall and Kevin are worried could become compromised. But I think the system is in far more danger from congressional leaks than from the intimidation of legislators. If intelligence agents find that sensitive information they brief to Congress makes it out to public, their response will simply be to stop telling Congress about much of what they do. And once this happens, then the oversight function is lost and you end up with things like Iran-Contra. So if you’re really worried about keeping intelligence agencies in line, the great threat is not from them leaning on Congress, who has plenty of power to resist any strong-arming; it’s from irresponsible Congressmen compromising the national security to butter up a reporter.

Which brings us to the second point Marshall made. Why be concerned about this leak? Well, first of all, as Marshall skates over quickly, the entire investigation was begun at the urging of several Congressmen, which kind of deep-sixes the whole “the FBI is browbeating Congress to stop their investigation” argument. Beyond that, though, this leak is particularly damaging because of what it revealed.

Intelligence assets are the gift that keeps on giving. If you can monitor an enemy’s communication, then you gain an incredible advantage on them. This leak, revealing specific words spoken by al Qaeda operatives, revealed to them both that they themselves had been identified (if they didn’t know that), and more importantly that the US was somehow monitoring their communications. So, this channel will now be closed and we will get no more information from it.

A recent example will illustrate the point. The US was able to tap in and monitor satellite phone calls that bin Laden made, without his knowledge. However, as part of the trials of the first Trade Center bombers, the US was forced to reveal transcripts from some of these calls, which let bin Laden (and everyone else) know that their satellite phone calls were not secure. So they stopped using them, and a vitally important source of intelligence was lost. If that information had been kept secret, the US might have learned of the September 11 attacks in advance (although this is unlikely), but they almost certainly would have been able to locate and capture or kill bin Laden in short order afterwards.

I don’t know exactly how the FBI (or CIA) was able to get the communications that were leaked, but now, unfortunately, whoever was being listened to knows. And now all the rest of al Qaeda probably knows as well that, say, their Hotmail accounts aren’t really anonymous.

Adding insult to injury, this leak served no purpose. From previous information it was already well known that the FBI made numerous screw-ups in the months leading up to September 11—this was just one more example, and not a very good one at that. So the leak was (maybe) tremendously damaging, with no corresponding benefit to anyone.

And Marshall’s point that “leaks happen, relax and let it happen” is simply laughable. Murders happen too, but that doesn’t mean that the police should stop worrying about trying to stop them, or investigating the ones that have occurred.

Link posted by Doug Turnbull at 3:10 PM

Monday, August 05, 2002
How good is the Constitution?

Demosthenes, who’s writing one of the best and most interesting blogs out there, provides a link to this book review in the New Yorker. The book, and the review, address the US Constitution and ask how good the government that it outlines is. The answer: not very good, at least according to the reviewer Hertzberg.

I agree with one of the basic points—that the founders weren’t infallible and that raising the Constitution up to the level of Revealed Word of Political Wisdom, all-knowing and all-foreseeing is unjustified. However, I’m less convinced by the specific arguments in the article.

First, the grounds of the argument they (the author Dahl and the writer Hertzberg) make against the Constitution is to judge it on how democratic it is:

Dahl's premise is that the Constitution ought to be judged by "democratic standards"—that is, by whether it is "the best that we can design for enabling politically equal citizens to govern themselves under laws and government policies that have been adopted and are maintained with their rational consent."

But basing a critique on this point—that the Constitution has some undemocratic features—is not saying anything new. All the commentary I've ever read indicates that the founders explicitly designed the government, and the Senate in particular, to be partially insulated from public opinion, and so to provide an institutional conservatism, an inertia to oppose any changes.

Starting out saying that the criteria to judge the system on is the stated democratic one is already assuming the most important point in the debate--just how responsive should the government be to the public? Taken to the logical extreme, this approach would advocate giving everyone in the country a log-on to and letting everyone vote on each bill proposed. And if you don’t support that idea (which I think would be a disaster), then you’ve ceded the main point and the question is no longer how to maximize the democratic nature of the government, but how to design a government that will produce the best governance, something very different.

Personally, I’m pretty happy with the levels of insulation between the mass will and actual enactment of legislation. Remove that and we’d have had a flag burning amendment and an amendment forcing everyone to say the pledge of allegiance every day, not to mention all the nifty handouts people would likely vote themselves.

Second, the particular examples cited in the article are unconvincing. The review focuses on slavery, an issue that hinges on practical politics at the time of the Constitution (as the writer admits.) Plus it’s a feature that’s been done away with, so is no longer relevant, except to demonstrate that the Consitution was not conceived in perfection, but can improve itself.

The other main example given is the Senate, which certainly is undemocratic to the extent that small state voters get a greater voice in the Senate than voters from large states. But the argument that this produces pernicious results is somewhat weak. The main supporting point made is that many worthwhile bills fail to make it through the Senate. While it's true that the Senate is the place that bills go to die, the article fails to make the case that this is because of the equal representation provision.

I'd bet that the Senate's oppositional power comes more from procedural considerations, namely the ability to filibuster with a 40 vote minority. That's the real undemocratic feature in the Senate.

He also falls in with the (somewhat) outdated idea of small state vs. large state interests, which is a dynamic that is changed by a two-party system. Unless small states tend towards one party or the other, the Senate seat apportionment doesn't bias towards any particular platform.

Finally, the article makes a circumstantial case that a US federal style government is not a good form, since so few other countries have adopted it, and some that have tried it have failed. The problem here is that the article commits the error of presenting non-normalized statistics. Without some control group or comparison, the numbers quoted are meaningless. How many governments with direct representation have failed? And what about the leverage gained by small minority parties in a proportional representative system? Is it more democratic to design a system that gives disproportionate power to small parties that represent only a tiny proportion of the population? The article never says, and so, while it raises some interesting questions, fails to convince me that it’s answers are the right ones.

Update: Demosthenes responds with two points. The first is that I haven't really answered the objection that the Senate is undemocratic. That's true--I haven't answered it because it's self-evidently true. But I'm not sure what the significance of that is. As I said, the issue is whether this is a feature or a bug. And the fact that the US has survived and thrived under the Constitution is good evidence that the government as designed works pretty well. To argue against it then requires, in my opinion, to show how the undemocratic nature of the Senate has produced pernicious effects. The article, in my opinion, didn't do a good job showing this. The main example they came up with (difficulty of getting bills through the Senate) is better explained by procedural factors than by the non-proportional representation.

The second, more interesting point, is whether the US form of government is appropriate for export. The original review also attempted this, but they did so through one of my pet peeves--throwing out statistics that are supposed to prove something but actually show nothing because there is no reference point for comparison. Deosthenes mentions that studies have shown US style governments are prone to collapse through gridlock. I can believe that, and such studies would be vitally important in any attempt at nation building.

On the other hand, these studies are also a bit irrelevant to a discussion of the Constitution, since it's not designed for other countries. It's designed for the US. And it has worked well here. It is complicated and baroque enough that I could certainly see it faling to thrive anywhere else, but it works for us. And while the reviewer has some theoretical objections to the form of government, I think a thoughtful conservatism would hew to Burke's admonishment to retain those things that work, and not to tinker with government in a vain attempt to perfect it, if the forms you have work perfectly well. Your changes might not be improvements, and for that questionable gain you're sacrificing the weight of tradition, which commands obedience through habit.

Link posted by Doug Turnbull at 2:38 PM

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