(Updated)Of Libertarians and Litmus Tests
(Posted by Mona)
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- Jeff Goldstein’s Protein Wisdom. About Goldstein, Scott Lemieux gets him about right, here. And, a few months ago, Glenn Greenwald reported that Goldstein was lamenting that because the left has placed us in the wussified grip of “identitiy politics,” we are failing in the Middle East due to not having killed enough people, ruthlessly enough. (Follow Scott and Glenn’s links to the original Goldstinian embraces of death and other nasty things.) And here is Jeff waxing all hip and ironic, unable to mask his palpable disappointment that peace is possibly happening in Lebanon, what with the folly of abandoning the neocon vision in that conflict and the gloomy return of foreign policy realism.
- Confederate Yankee. Who smugly insists that the anti-war supporters of Ned Lamont are “radicals” who have started the Democrats on a path to suicide.
- Dean Esmay. Esmay has accused the NYT of complicity in “high treason,” compared that paper and its sources with Alger Hiss and the Rosenbergs, and called for their sources on the illegal NSA spying to be hanged until dead,dead, dead.
- Cold Fury . At that site, as Glenn Greenwald explained, one of its bloggers purposely misquoted the relevant statute — FISA — to make it look as if his hero — Bush — was in compliance with it, rather than, as has been true, brazenly violating the law by failing to secure warrants vis-a-vis the NSA’s domestic spying on U.S. persons.
- Damnum Absque Injuria (xrlq) That guy is a militant defender of all things Bush that have to do with the ME and national security, but I pick this post cuz he therein calls me a “sycophant,” even tho I was agreeing with him in the discussion he was citing. Nevertheless, I’m still doggy doo-doo for having left the pro-Bush reservation. Oh well.
1. Should any of these be ostracized and shunned from the libertarian ranks? and*2. On the basis of what litmus test(s)?
In the not so distant past, even when compared to explicitly libertarian publications, there would be great similarity in subject matter (arguments for lower taxes, school choice, and Social Security privatization), contributors (Charles Murray, Thomas Sowell, and Walter Williams), and intellectual heroes (Hayek, Friedman, and Ludwig von Mises). There might be differences of emphasis, tone, and degree—the conservative magazines were much more concerned with political feasibility and the electoral fortunes of the Republican Party than their expressly libertarian counterparts—but also substantial agreement. The op-ed pages of conservative newspapers remain heavily populated by commentators affiliated with the libertarian Cato Institute, often described in the press as a conservative think tank.
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Pick up copies of the mainstream conservative and libertarian magazines and compare them today. In their treatment of the Bush administration, Attorney General John Aschroft, the Iraq war, and the Republican leadership, the libertarian magazines will read much more like the Nation than conservative outlets like the Weekly Standard. There have been increasingly testy exchanges taking place between the writers of National Review and Reason over such issues as the Patriot Act.
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Also consider that in two recent cases where popular conservative figures have been embroiled in personal controversies—when the Washington Monthly and Newsweek reported on William Bennett’s substantial gambling habit and Rush Limbaugh disclosed that he was addicted to painkilling drugs—libertarian commentators piled on with the same relish as their liberal counterparts. FoxNews.com columnist Radley Balko lambasted Bennett as a hypocrite on his Web site: “Your vices—sinful, regretful, damnable. My vices—not so bad. The guy lost $1.4 million in one two-month stretch. But he doesn’t have a problem. Cancer patients who want to smoke marijuana—they’re the ones who have problems.†Reason editor Nick Gillespie wrote how conservative defenses of the pre-eminent radio talk-show host were ruining the “otherwise enjoyable story of Rush Limbaugh’s exposure as a pill-popping hypocrite.†This hostility… [[partly]shows the degree to which many conservatives and libertarians no longer see themselves as being on the same team.
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The combination of libertarian and traditionalist tendencies in modern American conservatism was due in part to the need to gather together that ragtag band of intellectuals lingering outside the New Deal consensus who were opposed to the rising tide of left-liberalism. An alliance made out of political necessity, it drew some measure of intellectual consistency …
“Fusionism†was the name for Meyer’s synthesis, and while it was never without critics, it worked well enough for most conservatives and for the development of an American Right that counted anti-statism and traditional morality as its main pillars, alongside support for a strong national-defense posture. When Ronald Reagan became the Republican presidential nominee in 1980, this even became the basis of the GOP platform: smaller government, family values, and peace through strength.*
Yet a growing number of libertarians no longer think they are getting much out of the fusionist bargain. Liberty magazine editor R.W. Bradford called upon his fellow libertarians to cease thinking of themselves as operationally part of the Right. …
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Jeffrey Tucker of the Ludwig von Mises Institute has argued that “conservative†as a term for those who love liberty has gone the way of “liberalâ€â€”hijacked by statists so that it now means precisely the opposite. “We lost the word liberalism long ago, and only adopted the term conservative with the greatest reluctance. It is time to give it up too, neither describing ourselves as such nor allowing others to do so. We don’t take our marching orders from neocons. We don’t believe what we see on TV. We do not love the GOP. We are not nationalists. We believe in the idea of liberty. We are libertarians …â€
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FoxNews.com’s Balko normally votes Republican and cast his ballot for George W. Bush in 2000 but now says he’s “90 percent certain†he “won’t be voting for President Bush in 2004.†He further argues that the “right now poses a greater threat to freedom than the left.†Jim Henley, a noted libertarian blogger, put it even more bluntly: “Having abandoned the substance of limited government since early in the Gingrich ‘revolution,’ conservatives increasingly eschew even the rhetoric of limited government. Animosity aside, they’re just no use to libertarians any more.â€
A realignment is occurring. If the Democrats play their cards right, a lot of ’tarians will end up tilting toward them — as we used to heavily tilt GOP — for many of the reasons (some of) the above-linked AC articles examine. Do read the whole of the Crack-up and Gillespie pieces.
Comment by Alex —
August 14, 2006 @ 6:56 am
I would say that anyone who is still supporting Bush is, by implication, supporting Bush’s interpretation of Article II that the President has absolute powers and any law restricting them is unconstitutional. Anyone who accepts this is an authoritarian and really can’t be considered a libertarian. Really it’s hard to see how you can believe this and still be an (uncapitalized) democrat or republican.
Comment by Jennifer —
August 14, 2006 @ 7:47 am
Can real libertarians oppose warrantless random searches of the bags of New York subway riders?
Comment by Andrew Olmsted —
August 14, 2006 @ 8:38 am
I find litmus tests tiresome. People are going to call themselves what they want, regardless of what other people think. (Just look at Joe Lieberman, or Lincoln Chafee and other so-called ‘RINOs’ on the other side.) For my money, the best thing to do is keep the focus on the policies rather than the labels.
Comment by Mona —
August 14, 2006 @ 8:49 am
Jennifer, do you have no litmus test, or is the bag search really such for you?
Andrew: Don’t you think it would be bizzare to include Gary North as a libertarian, given that he advocates the repeal of most of the Bill of Rights, and the stoning of homosexual men?
Comment by ex-libertarain —
August 14, 2006 @ 8:51 am
I am officially no longer “libertarian” as I don’t want to associate with collectivists or your purges. (Though this is the 20th time I have turned in my “official libertarian badge.” The first time was when I encountered the work of Justin Raimondo.)
Hope you are pleased with your work.
Comment by Jennifer —
August 14, 2006 @ 9:07 am
Jennifer, do you have no litmus test, or is the bag search really such for you?
My memory is a bit fuzzy, but I seem to recall somebody yelling at me last year because real libertarians have respect for New York cops, and understand that they have a tough job, and would never try to make life miserable for an honest cop who’s merely pooping on the fourth amendment by conducting warrantless (and useless) random searches of rank-and-file New Yorkers.
I’m just worried that my refusal to grab my ankles and smile when the government says “bend over” might mean I’m not a real libertarian.
In case anyone is curious, here’s the guest post I wrote for Jim a couple of days ago explaining why these searches won’t work. (It’s not showing up on preview. Here’s hoping it appear when I hit “submit comment.”)
Linky
Comment by Andrew Olmsted —
August 14, 2006 @ 9:21 am
Mona,
Certainly I wouldn’t call him a libertarian. But it strikes me as akin to tilting at windmills to try and apply a litmus test to people who call themselves something they aren’t. So I suppose it depends on your goal for the litmus test; is it just something you want to use to decide whether or not to call someone else a libertarian, or is it something you want to use to try to expose non-libertarians?
If the former, then I’ll throw this out there: a libertarian looks for non-governmental solutions to problems as opposed to expecting the state to step in to resolve society’s issues. That’s a pretty broad brush, but I’m not sure how sharply you want to draw the lines, as the more detail you put into the definition, the better the chances you put some libertarians outside the circle.
Comment by Jaybird —
August 14, 2006 @ 9:40 am
Is ideological purity really the best way for Libertarians to spend their energies?
It has always seemed to me that ideological purity is, like, number 10 on the list of things that a party would want to do and only if 1 through 9 have been either deemed accomplished or deemed impossible do people say “well, who do we throw out of the party now?”
Looking over the accomplishments of the Libertarians for the last 6 (or 16, or 26, or 36) years, I’m guessing that 1-9 have all been deemed “impossible”, yes?
Comment by tom scott —
August 14, 2006 @ 9:44 am
I didn’t realize thar Reason owned Walter Olson. Walter is his own man and one to be admired on his own achievements. I quit a long time subscription to Reason when Virginia, Walter and other adults left the magazine in the hands of the children.
Comment by Mona —
August 14, 2006 @ 9:55 am
Jennifer writes:
Jennifer, a voluntary search without a warrant is reasonable by definition, per the 4th Am, so this protocol does not violate the 4th Am, as the 2nd Cir. just ruled. None of which is to say it is efficacious — I’m not privy to the police intel and thinking behind it. (Airline bag searches and body scans are also kosher, and one is free not to fly the skies if one doesn’t like that.) I understand that you find it inconvenient — I lived in NYC for two yrs in the late 90s, and I wouldn’t have liked it either. But it is a voluntary process and the govt isn’t doing it to try to catch weed or porn. Subways in major metropolitan areas have really been blown up.
Sobriety checkpoints are bit trickier, since one is in a traffic line and they don’t let one refuse; consent is said to be implied by being on the road.That is more of an assault on liberty, even tho the carnage they are trying to prevent is al all too real problem
In any event, in the order of things nonconsensual eavesdropping on your international calls without warrants, as collected by a huge and secret national agency, and in violation of a federal statute, is of infinitely more gravity that whether Jennifer has to turn on her heal at the subway entrance to protect the integrity of her bag. The former should have all liberty-loving people enraged; the latter, not so much.
(Wehther the warrantless NSA surveillance violates the 4th Am is an unsettled question of law; that it violates FISA that protects privacy interests by statute, is not.)
Tom Scott: When Olson wrote that piece, I believe he was on Reason’s staff.
Comment by Wulf —
August 14, 2006 @ 9:58 am
Mona, I have given a little fleshing out of my thoughts on this here at AtlasBlogged. I do think Olmsted has a good point about how useful it is, to some degree. But words do lose their meaning if we do not have at least a fairly standard definition. What the hell is a libertarian if we don’t care who self-identifies as one?
Comment by Jennifer —
August 14, 2006 @ 10:17 am
Mona, when we had this debate last year you never did answer my question: since only a small fraction of the subway entrances are being searched, and since anyone who doesn’t want to submit to a search can always turn around and leave the subway (and if this means some hard-working schlub is late for work, that’s the price he must pay for freedom), how many bombings do you think will actually be prevented because a terrorist with a bomb in his bag says “okay” and hands his bag over when a cop asks him to submit to a search?
But it is a voluntary process and the govt isn’t doing it to try to catch weed or porn
Oh, really? So if someone’s caught with a little weed the cop will just let him go, you think? What about those of us who don’t have anything illegal on us, but just don’t want a government agent pawing through our personal belongings when all we’re trying to do is get to work or visit a friend?
Never mind that you’re stretching the word “voluntary” about as far as it can go; it’s not like people in New York have to ride the subway to get anywhere, right? You can always just walk 100 blocks to get where you need to go, or if you’re rich you can afford a taxi.
In any event, in the order of things nonconsensual eavesdropping on your international calls without warrants, as collected by a huge and secret national agency, and in violation of a federal statute, is of infinitely more gravity that whether Jennifer has to turn on her heal at the subway entrance to protect the integrity of her bag. The former should have all liberty-loving people enraged; the latter, not so much.
Why not? Why shouldn’t liberty-loving people be outraged not just by the gutting of the fourth amendment, but by the gutting of the fourth amendment for a safety policy that won’t even work? And why should the integrity of my person and what I’m carrying on it be worth less than the integrity of my phone conversations?
Here’s another question you never answered: I’d always learned that the good thing about America is that, unless the government has damn good reason to suspect you’re up to something, it is supposed to leave you the hell alone. Why do you think this is a bad idea?
Comment by Josh Poulson —
August 14, 2006 @ 10:20 am
One of the things I believe (and I consider myself a neolibertarian) is the legitimate purpose of government is protecting the rights of individuals. Thus I accept police and courts and armies whose purpose is to do just that. My support (even though I consider myself a libertarian) for the GWOT derives from that.
It doesn’t have to be complicated.
As for the litmus test. Using the NY Subway is a voluntary act. you could always drive, walk, or work somewhere else. If the subway was privately owned I think the owners would protect their investment by conducting random searches. No one’s being moronic here.
Comment by Jennifer —
August 14, 2006 @ 10:22 am
Another thing, Mona: I seem to recall your saying that you weren’t worried about the New York searches because you know a lot of New York cops, and they’re all just salt-of-the-earth, wonderful guys. Have you ever considered the possibility that maybe the cops might be nicer to a white upper-middle-class lady lawyer than they are to people with less money or access to power lawyers? Or were the death of Amadou Diallo, and that guy getting sodomized with a broomstick in the police station, the only two dark spots on the NYPD’s otherwise unblemished record?
Comment by Jennifer —
August 14, 2006 @ 10:23 am
Same question to you, Josh: how many terrorists do you think will hand their bombs over to the cops if they’re asked to? How many do you think would instead turn around and find another entrance to the subway?
Comment by Leonard —
August 14, 2006 @ 10:37 am
Litmus tests? Why not? “Big tent” inclusiveness is fine for big parties, whose big idea is basically “steal big dollars and feed me“. Everyone can agree on that! (I’m on my way; I’m makin’ it!)
Given that we are a tiny minority and are destined to stay that way (until humans are reengineered with higher intelligence, at least), there’s no reason why we shouldn’t engage in internecine sniping and litmus test nya-nyaing. These things are intellectual pursuits, which is appropriate for ivory-tower ideology.
As for the specific litmus testing, though I’d like to make it “anti-war”, I don’t think it’s a clean enough test because libertarians can support defensive wars, as well as punitive military operations against criminals. (Was Afghanistan justified war or not?) Also, one can be anti-war for many reasons, only some of which are libertarian ones. War per se is not a violation of human rights. Thus it’s not really a litmus test.
Nor do I think civil liberty stuff like random searches make a good litmus test. If I happen to own a subway, or a road, or a park, I have the right to ask you to do anything I want as a condition of use. (And you have the right to refuse.) Of course if I am a state agent, particularly one managing a monopoly service, I ought to be more constrained, but as a clear matter of principle the lines around civil liberties are very hard to draw. Should we really let a red-handed murderer go if the police fail to Mirandize him? Libertarians can vary on this point in good faith.
My suggestion for a litmus test is anti-tax, which is to say: people who believe that all taxation is morally wrong are libertarians. Others aren’t. I realize this does not capture all of what liberty is about, but it’s a large enough chunk of it (and a stark enough moral position), that I think it serves nicely as a litmus test.
Anti-tax is substantively anti-war, because massive standing armies don’t grow on trees. Those guys Mona lists above may or may not be anti-tax; if they are, and if they are intellectually honest, then they’ll admit that there’s no way in hell that if the state was moral it could sustain the war they want.
Of course, if one happens to have a huge standing army just sitting about, perhaps one should use it even if one believes that in a moral world it would not exist as such. In that sense I’d be willing to admit as a comrade someone who was pro-war, so long as he maintained stringent limits on what sort of war he was willing to condone. Jim, for example, was vaguely supportive of the Afghanistan war, and he’s a libertarian. I think.
Comment by Josh Poulson —
August 14, 2006 @ 10:38 am
Jennifer, that’s a silly question. Are you saying that random searches don’t work so we shouldn’t do them? If they didn’t work, they’d do something else, because we don’t have enough resources to do things that don’t work. Mostly likely it’s the best solution for the resources we *do* have.
Comment by linguist —
August 14, 2006 @ 10:39 am
Should they be ostracized? This is a bit out of character, but I’m leaning toward a “yes”. Unfortunately, my litmus test is the definition of subjective: my own experience.
That’s only because, like you, Mona, I started out on the pro-Bush side of things (though never rabidly so) and have slowly drifted quite a ways into negative territory. I really wonder how a “libertarian” could not do so.
Comment by Bruce Baugh —
August 14, 2006 @ 11:13 am
I’m not a libertarian myself, but the bag search issue strikes me as a classic good issue for libertarians and lovers of liberty generally.
First, it doesn’t work, for the reasons Jennifer and others have given.
Second, it soaks up police time and attention that could rewardingly go elsewhere.
Finally, it runs counter to the clear intent of the Bill of Rights.
“It’s wrong and it’s stupid” is a pretty good combination, I think.
I agree that litmus tests don’t work reliably, and on the whole I think that it’s more worthwhile to look for an identity that does distinguish oneself from the folks one would like to be distinguished from. But I also think there’s a point to saying “this is just bogus’, and while I’m not sure where the libertarian line should lie, surely it’s somewhere over here well away from wars waged for false reasons on bogus evidence without adequate preparation and with an enthusiastic race to abandon all civil rights whatsoever.
I find Andrew’s “looking to society rather than the state for solutions” preferable to Leonard’s anti-tax suggestion for two specific reasons. First, it’s a positive statement rather than a negative one – you can recognize an Olmsted-flavor libertarian by what it is they’re doing, or trying to do, or supporting others in doing, and there’s room for them to be doing stuff about present needs without waiting for the state to wither away and/or go out for cigarettes and never come back. Do not underestimate the widespread desire for something, anything to feel positive about these days. Second, Leonard’s criterion would require additional qualifications to separate it from the Republican Party’s batch of looters and thugs.
Comment by Jennifer —
August 14, 2006 @ 11:13 am
Jennifer, that’s a silly question. Are you saying that random searches don’t work so we shouldn’t do them?
Yes. Random searches will not stop a single bombing, since a terrorist with a bomb won’t turn it over; he’ll just go to another subway entrance that doesn’t have a checkpoint. So the searches will NOT keep us safer; they’ll only make us grow accustomed to government agents stopping us and demanding to search us with neither warrant nor reason.
Comment by Jennifer —
August 14, 2006 @ 11:30 am
If [random bag searches] didn’t work, they’d do something else, because we don’t have enough resources to do things that don’t work.
Which is why we immediately ended the War on Drugs when we realized it was only making society worse, right?
Comment by Josh Poulson —
August 14, 2006 @ 11:31 am
Strong assertions, but let’s look at specifics: http://www.counterpunch.org/weill07142006.html
So, they are using millimeter wave radar on a PATH station. I’ve ridden the PATH. It’s a long friggin’ way from one PATH station to another, so if I was a suicide bomber, I’d more likely choose an office building at random.
Yes, there are freedom issues because the government is doing this. However, if the PATH was owned by a private concern, libertarianism is out the window. If *I* owned a subway I’d be checking for explosives too. Sure, I’d let everyone carry guns, but that’s not the question here.
The subway search question is a really poor test of libertarianism.
Comment by Josh Poulson —
August 14, 2006 @ 11:36 am
Let me make it explicit: My litmus test for libertarianism is “What is government good for?” It’s an essay question.
Comment by Mona —
August 14, 2006 @ 11:36 am
Jennifer, whether or not random bag searches work, the scenario there is not a heinous assult on the 4th Am. (And I do not know whether such searches create disincentives for terrorists to target subways or not; I’m not a counter-terrorism expert.) I do not think most members of the NYPD are interested in your weed or sex toys; there really is a threat of terorists targeting public transportation systems, including subway systems in major metropolitan areas.
And the bottom line is this: the searches ARE voluntary. You can choose something other than the subway. You are free to refuse and walk away. That is less troublesome than sobriety check points where, if you try a U-turn, they will chase your ass.
People can and do argue whether the random bag searches serve any benefit in reducing the threat of a bombing or sarin attack on subways. I’m not competent to know whether there is any such benefit, or how great or de minimis it might be if it exists. But this issue is not, in the shceme of things, the sort of severe assualt on our system of government and civil liberties that screams for attention.
That’s just the way it is. I’m more interested in whether the NSA is listening to my telphone calls without my consent or knowledge. That is illegal, and if the SCOTUS ruled the way I think it should, it would also constitute a violation of the 4th — involuntray interception without notice or even knowledge could not possibly be more of an assault on basic civil liberties, and could engender the very abuses the FISA law was meant to end. (That is, Dem and GOP Admins, pre-FISA, had been using surveillance programs to get dirt on political opponents.) And again, Bush’s NSA program is literally lawless, since FISA prohibits such warrantless eavesdropping.
In sum: I’m worried about the big issues. Not random, voluntary bag searches that may have some salutary effect in terms of preventing the release of deadly toxins on the commuting public. If it is true that there is absolutely zero such effect, then for fiscal reasons the random searches should be abandoned and the resources in terms of $$ and manpower redirected. I deem that isue more impt than any supposed assault on the 4th.
Comment by Josh Poulson —
August 14, 2006 @ 11:51 am
Mona,
The NSA intercepts are not a violation of FISA:
http://pun.org/josh/archives/2006/01/congressional_r_1.html
Comment by Jennifer —
August 14, 2006 @ 11:53 am
And the bottom line is this: the searches ARE voluntary. You can choose something other than the subway. You are free to refuse and walk away.
Which is why they will utterly fail at preventing terrorism. But how far do you stretch the definition of “voluntary?” Are you now going to point out that the Constitution does not guarantee Americans the right to go to their jobs without government interference? Having a job is voluntary, after all. Can New Yorkers who refuse to submit to searches demand a refund of the tax money they’re spending on this (public) subway system? If the cops then start doing random bag searches on city streets, will you call those voluntary since you can always choose not to walk down that road?
I do not think most members of the NYPD are interested in your weed or sex toys; there really is a threat of terorists targeting public transportation systems, including subway systems in major metropolitan areas.
I don’t have any sex toys; maybe yours are the ones they don’t care about. Why do you keep bringing up sex toys and porn, anyway? Those items are at least legal. But for all your insistence that “they don’t care about drugs,” are you making the actual claim that if they look in someone’s bag and find pot, they’ll say “No problem, at least it’s not a bomb?” Nonsense.
Besides, I don’t carry illegal items when I go to New York, but neither do I buy the authoritarian argument “If you have nothing to hide, you shouldn’t mind a search.”
Jennifer, whether or not random bag searches work, the scenario there is not a heinous assult on the 4th Am.
You keep saying this, but you don’t say why. All you say is “listening to phone calls without a warrant violates the fourth amendment, but searching people’s bodies and belongings without a warrant doesn’t.” So when the fourth amendment talks about the right of people to be secure in their persons, you figure personal belongings carried on said persons don’t count?
Not random, voluntary bag searches that may have some salutary effect in terms of preventing the release of deadly toxins on the commuting public.
In context, isn’t “may” a weasel-word? After all, random eavesdropping of phone conversations may play a role in preventing the release of deadly toxins on the commuting public, too. It sounds like your personal standard is “if it offends Mona it violates the fourth amendment and is an affront to libertarian principles, but if it doesn’t offend Mona it’s fine and not even worth worrying about.”
FWIW, I don’t use telephones and when I go to New York I take taxis rather than the subways. So neither ruling affects me personally, but I still oppose them both.
If it is true that there is absolutely zero such effect, then for fiscal reasons the random searches should be abandoned and the resources in terms of $$ and manpower redirected.
And I’m certain that any second now, the Drug War will end for exactly this reason, right? Not like there’s any historical precedent for thinking the government will keep on violating civil liberties when there’s no clear societal benefit to doing so, eh?
Comment by Josh Poulson —
August 14, 2006 @ 12:02 pm
There’s a lot of different ways to get to work. There’s a lot of different places to work. NYC, especially the routes in and out of it, are a prime terrorist target.
Is it appropriate to do nothing? Respect the threat. It is real.
Comment by Jennifer —
August 14, 2006 @ 12:14 pm
Is it appropriate to do nothing? Respect the threat. It is real.
I’m not saying “do nothing;” I’m saying “if you’re going to do something, do something that works.” And purely random searches any terrorist can walk away from won’t work; the only people who will actually hand their bags over to the police are the ones who have done nothing wrong. Only honest people will be searched, not the ones we need to look out for.
How about taking some of the money currently spent paying overtime to bag-searchers, and buying equipment which can detect the presence of explosives or poison gases? That might actually accomplish more than eroding our fourth amendment rights. But no–that won’t give the government additional authority to bother people who are doing nothing more than trying to live their lives in peace.
Comment by Billy Beck —
August 14, 2006 @ 12:26 pm
I have a question.
Why do you people write “litmus test” when the actual referent is principles?
Stop the euphemasia. Just stop it.
Comment by Josh Poulson —
August 14, 2006 @ 12:31 pm
Jennifer,
If you look at the article I referenced, you’ll notice that “purely random searches any terrorist can walk away from” is stretching the point. No one hands over their bags. They walk through a millimeter wave radar booth on the way to the PATH. The equipment is tuned for finding bombs and bomb belts.
Comment by Bruce Baugh —
August 14, 2006 @ 12:48 pm
I challenge anyone who’s serious about the threat of terrorism to tell me that if they were designing a response from the ground up that things like random bag searches would be anywhere near the top of the priorities list. This is all after-the-fact rationalization for behavior by the police that apparently some find it not worth their while to challenge. That’s not the same thing.
I would accept as partial justification for the searches evidence such as confiscated explosives, poison gases, etc., or the reliable testimony of captured terrorists that such things were deterrence. (By “reliable” I mean “presented with a chain of evidence that makes it unlikely they were tortured or otherwise forced to confess”, which admittedly rules out pretty much all the US’s suspected terrorists.)
There’s a very good reason for libertarians to make hay out of such issues, too. A lot of what concerns anyone with a principled worldview is far removed from most people’s experiences. Random searches aren’t. Folks have seen them and dealt with them. It’s a chance to bring liberty home: this is what the authorities are doing rather than something productive, just so that you feel their hands on your life. You can start from there and reach out to fold in other people’s less familiar experiences without losing that practicality.
Comment by Leonard —
August 14, 2006 @ 12:56 pm
Billy, principles aren’t the only basis for libertarianism, unless you want to say that people who are, i.e. utilitarians are “principled”. Yet it is possible to be a utilitarian libertarian. (At least by my litmus test, it is!)
Second point is, principles by their nature are not tests. Principles are fundamental beliefs, i.e., it is wrong to steal. It’s certainly easy enough to create a test from any given principle – i.e., do you believe that theft is morally acceptable in all circumstances? But the two things are distinct. You probably have principles that are not libertarian per se. Thus, you cannot simply claim that your test is “the same as me for all my principles”. Even if you do think that your principles are both necessary and sufficient to define libertarianism, asserting that fact is important, and a different thing from having principles or being a libertarian.
The point of litmus testing is to determine something; thus, the ideal litmus test is easy to perform, yet powerful. You and I share some principles, at least. But do I share all of your principles? Maybe, in some sense. Maybe not. It would take time to figure that out. On the other hand, it’s easy for me to ask you: Are you opposed to all taxation?
Comment by Keifus —
August 14, 2006 @ 12:58 pm
I’m still rather fond of one of the distinction that was brought up on this blog several weeks ago, in the comments section I believe. The distinction was between civil libertarians and property libertarians.
Interestingly (or not), I think these groups can oppose each other. And it’s those special sectors–where monopolies are either the de facto case or the most effective case–where libertarianism gets knotted up. These few special cases may offer a market-based outcome that infringes on personal liberties, may hit some singular condition of supply and demand, or may be beyond the time horizon that the market, as it’s currently tuned, can see.
When I start making these big exceptions (as I see them, they include defense, health care, a fair justice system, fundamental R&D, maintenance of the environment, possibly transportation infrastructure, possibly education), however, I start sounding more like a liberal, even though I certainly am opposed to unnecessary taxation, and promote civil liberties fersure.
What I desire socially, by the way, is a reasonable expectation of fairness, which I realize is mutable. I think this is something often assumed by those that wear the libertarian label, but I could be wrong about that.
What is government good for? That’s a good way to frame it. Loosely, it’s infrastructure, but what counts as that?
Keifus
Comment by Josh Poulson —
August 14, 2006 @ 1:12 pm
What is government good for? That’s a good way to frame it. Loosely, it’s infrastructure, but what counts as that?
Well, I gave my answer above. Government is for protecting the rights of those within its area of effect. Thus, I support police, courts, and armies whose purpose is to protect our rights. Etc.
The support and creation of infrastructure is a slippery slope. Highways, trains, education, the FCC, … You can see where all of these are infrastructure initiatives, but are not necessarily the best solution to the problems they were intended to solve.
Comment by Leonard —
August 14, 2006 @ 1:15 pm
Bruce, Republicans are not morally opposed to all taxation. I don’t know why you assert that they are. Saying so makes you look a bit stupid.
Comment by Bruce Baugh —
August 14, 2006 @ 1:51 pm
If someone wants clarification of my comment and can ask without insulting, I’ll be glad to clarify. I have to keep reminding myself that Leonard is either ignorant of basic etiquette or abstaining from it.
Comment by Mona —
August 14, 2006 @ 1:58 pm
Mr. Poulson, your NSA analysis is faulty on more levels than I have time to address. Suffice it to say that Powerline’s lawyers apply their legal skills to sleight-of-hand shilling for Bush, and no lawyer would actually submit briefs with their arguments to a court.
Indeed, the recent Hamdan decision from the SCOTUS spells the death knell for the specious, extremist arguments the Adminstration set forth –which were never really the ones you make anyway. That is, they always admitted they were violating FISA; they simply offered absurd legal theories as to why they were entitled to.
To quote from Glenn Greenwald’s discussion of Andrew McCarthy — one of the administration’s most stalwart legal defenders — who now agrees the legal arguments are lost with the ruling in Hamdan; as McCarthy wrote in NRO [July 11th]:
Bush is violating FISA, a criminal statute. It is sheer lawlessness.
Comment by Mona —
August 14, 2006 @ 2:03 pm
Jennifer: One last time. A voluntary search, by definition, is reasonable, and does not require a warrant. That is Con Law 101.
You may argue — you seem to be doing so — these searches are not voluntary; it’s being a nuisance avoiding them by refusing, however, does not equal involuntary. It is not statism run amok if the courts see it that way, and there are much bigger problems to be worrying about on the civil liberties front.
Comment by Steve —
August 14, 2006 @ 2:05 pm
Leonard, in a back-and-forth about neolibertarianism on this blog a while back, Jim asked a question of his civil-libertarian liberal readers: Is there any level of taxation which you would define as genuinely immoral rather than merely counterproductive. That, as opposed to “all taxation” — what, is the Night Watchman/minarchist state supposed to get by on bake sales? — seems like a better way of putting it to me (as one of the civil-libertarian liberals who says “counterproductive yes, definitionally immoral no”).
Trackback by Inactivist —
August 14, 2006 @ 2:47 pm
The Direction of the Democrats…
This article was originally posted at AtlasBlogged this morning.
…
Comment by Leonard —
August 14, 2006 @ 3:14 pm
Bruce, that would be “abstaining”, but as a tit-for-tat. To my eyes, your assertion that anti-tax (clearly defined to mean ‘all taxation is immoral’) is indistinguishable from a Republican position is not only obviously and flat-out wrong, but offensive. Offense is what you might expect when you say that someone is not distinguishable from “looters and thugs” without further scrutiny. And hence the jab.
Steve, I’m not sure what you’re suggesting as a test: that a libertarian believes there is some level of taxation beyond which it is immoral? That strikes me as uselessly broad.
As for what the minarchist state is supposed to run on – well, that is quite the conundrum, isn’t it? I think most minarchists are disturbed by it, exactly because they are “libertarians” as I would litmus-test the term. They see the moral argument for why taxation is theft, that voting cannot justify rights-violation. Many of them remain minarchists in spite of agreeing with the moral sentiments I express; a lot of people just don’t see any way around the problem. If morally all taxation is wrong, but some is necessary anyway, what do you do? Well, you do minimize taxation. But you still think that it’s wrong.
BTW, I don’t see that a “bake sale” (generally meaning charity) is such a bad idea for funding the state. Charity would certainly fund a military of about the right size for me. Can an entire state be run on charity? Well, there’s certainly plenty of charity money in existence, such that if law and order were the overriding problem of society, it would be enough.
(Another solution to the minarchist’s conundrum is anarchism.)
Minarchists who are not my kind of libertarian don’t see taxation as a problem. The interesting question for them is: if aggression is OK for some few very important things, why not for some other very important things? Isn’t, say, medical care as important as police protection? Aren’t our sainted Children important? Down this path liberalism lies.
Comment by Jennifer —
August 14, 2006 @ 3:24 pm
You may argue — you seem to be doing so — these searches are not voluntary; it’s being a nuisance avoiding them by refusing, however, does not equal involuntary.
Oddly enough, I feel similarly about using the telephone–it’s a purely voluntary action. If you’re so uptight about the cops hearing your conversations (especially if they involve those sex toys or porn videos you kept mentioning earlier), you can find non-phone means to communicate. This would be no more of a burden to you than finding non-subway means to get around would be to a low- or middle-income New Yorker.
Comment by Xrlq —
August 14, 2006 @ 3:35 pm
“Libertarian socialist” is an oxymoron, and Lew Rockwell’s “paleolibertarians” are generally hard-core statists, so neither group ought to be counted as “libertarian” if the word is to mean anything at all. As for the five “neolibertarians” you took issue with, it bears noting that all five involved issues on which there is no libertarian position, one way or the other. The example naming me was particularly silly; what exactly is the “libertarian” view on bloggers deliberately misrepresenting the positions of other bloggers (the issue on which you “left the Bush reservation” and became that blowhard’s sycophant), or on the semantics of “chickenhawk” (the sub-issue on which we agreed in that discussion)?
Comment by Andrew Olmsted —
August 14, 2006 @ 3:50 pm
I am still put off by the idea that we ought to be purging people from libertarian ranks. When an appalling small number of people vote for small government now, why on Earth would we want to push people out of the tent? It seems to me that most successful movements save the purges until after they’ve been successful. We haven’t been successful in a depressingly large number of years, so I fail to see the advantage in getting overly worked up about who calls themselves libertarians (with some possible exceptions for libertarian socialists and paleolibs, but even there, if people really think that’s what libertarianism is about, we have bigger problems).
Comment by Wulf —
August 14, 2006 @ 3:52 pm
Is there any level of taxation which you would define as genuinely immoral rather than merely counterproductive.
Steve (and Jim), the easy answer to this is that taxation is moral when it supports a moral function of government. So the proper form of the question, to my mind, is to ask what the legitimate functions of government are, and what manner of taxation would be legitimate to support said functions? It avoids a false dichotomy of “all taxes are unjust†vs. “the just levels of taxation are arbitraryâ€.
Comment by Leonard —
August 14, 2006 @ 3:54 pm
“Lew Rockwell’s ‘paleolibertarians’ are generally hard-core statists”
What? Do tell. Rockwell is an anarchist. “Paleolibertarian” is just a label for ideological anarchists who are personally conservative. Rockwell publishes a wide range of stuff, not all of it by libertarians.
Comment by Xrlq —
August 14, 2006 @ 4:35 pm
“Libertarian anarchist” Lew Rockwell defended the Rodney King beatings, offering such gems as this:
This:
Which he brilliantly topped off with this:
Yeah, those sound like the words of a libertarian anarchist to me.
Comment by Steve —
August 14, 2006 @ 4:35 pm
It avoids a false dichotomy of “all taxes are unjust†vs. “the just levels of taxation are arbitraryâ€.
Sure, but if you dig back through that discussion, you’ll see that a number of people — myself included — were unwilling to rule out any level of taxation as inherently immoral; while Leonard may be right that it’s still too coarse a filter, it at least produces some results (and I doubt you’d get many false positives). I’m not sure that Jim can imagine a legitimate state need to tax like Sweden, whereas I, a mere statist, can.
Comment by Jennifer —
August 14, 2006 @ 7:44 pm
Even though Mona and I will probably never agree on some things, we still likely have more political views in common that 90 percent of Americans out there. So as to the topic of litmus tests: in all seriousness, libertarians are so marginalized already I don’t know if we can afford much internal fragmentation. I’m at the point where if one of the two major political parties adopted even a quarter of our platform (and meant it, not just lip-service), I’d vote with them because I’d figure that would be a big improvement over what we’ve got now. Anything that’s a noticeable improvement over the corrupt status quo is limit and litmus enough for me, I think.
Comment by Leonard —
August 14, 2006 @ 7:50 pm
Xrlq – assuming that those are Rockwell’s words, they indicate a rather… shall we say… primitive approach to civil rights. Nonetheless, if he did write them (the attribution on the internet is just one source, a post by Tom Palmer), they may represent views which have evolved over the past 15 years. I think it is fairer to judge Rockwell by he writes now, don’t you?
(Nonetheless, I’ve written him to see if he did write that bit about King.)
Find something deviationist in his corpus at LRC, and we’ll talk. It goes back to ‘99, so, you’ve got 7 years worth opinions to find something objectionable in. Deal? Right. It’s right here, in case you’re too lazy to look it up yourself.
Comment by Leonard —
August 14, 2006 @ 8:06 pm
Jennifer, we’re frickin’ 2% of the population on a good day. Our ideas are outside of the mainstream, and always will be, because they are ideological in the extreme, and ideology is the province of intellectuals. Intelligent people interested in ideas, that is.
The majority of people will never be intellectuals. The majority of people are of average intelligence (or less.. half your fellow citizens have double digit IQs!) Even only considering smart people, the average person is not interested in ideas. As an ideology that appeals only to intellectuals, libertarianism will therefore never command a majority. Far from it.
We’re never going to have a majority. Never.
Never. I mean it.
Now, purged of the lure of “winning” in winner-take-all democratic elections, what’s the point of a “big tent”? So a bunch of people who aren’t really libertarians can be tricked into saying saying they are? What’s the point?
There is a point in tricking people into false Republican or Democratic consciousness. Thus, the endeavor of bamboozling them has value. Stupid votes don’t get undone, as the sizeable community of Jews for Buchanon in Florida will tell you. But that’s not our position. Never will be.
Incidentally, if you’re willing to accept just agreeing with a quarter of our positions as libertarian, then you might want to reconsider the neolibertarians. Reynolds certainly has a libertarian sensibility on many issues, typically on things he knows anything about. (This is not unusual.)
Comment by SomeCallMeTim —
August 14, 2006 @ 9:57 pm
Surely it’s possible to order the liberties you care about, and then note which party corresponds to the violation of liberty nearest the top of the list. And, hey, maybe you don’t order the list in the same way. Maybe some of you are the traditional “life, liberty, property” types. Maybe some of you are “property, life, liberty” types. That difference is probably worth knowing, because I suspect those two groups are not such easy bedmates as a common designation might suggest.
Comment by Jennifer —
August 14, 2006 @ 10:52 pm
We’re never going to have a majority. Never.
I know. But we don’t have to if we can, as SCMT pointed out, find the party which corresponds with the values you hold most important. Besides, the number of people who call themselves libertarians matters less than the number of libertarian principles we can maybe apply to the greater political whole. If a guy wants to end the war on drugs, but supports the status quo on affirmative action and FDA regulation of medicines–well, even though I hate two out of three of these principles I’m still voting for that guy because he’s a huge improvement over the status quo, which supports the WOD, AA and the FDA.
Otherwise, what should we do–sit around, talk about how superior we are and argue about the finer points of a political philosophy we’ll never see put into practice? You can argue that all taxes should be voluntary while someone else argues that mandatory taxes for national defense are acceptable, and meanwhile in the real world tax rates or the national debt goes up. And then Libertarian A can argue that all drugs should be completely unregulated while Libertarian B argues that drugs should be the regulated legal equivalent of alcohol, and meanwhile in the real world you can’t even buy cold medicine for fear you might make meth with it.
Comment by Jeff G —
August 14, 2006 @ 11:31 pm
Mona, following her hero Greenwald, is a liar, a propagandist, and about as nuanced as an Andrew Dice Clay monologue. Though she tries to paint herself as a deep thinker.
Anyone who reads my site and comes away thinking that I embrace death and other nasty things — or that I don’t want peace in the middle east — is either an idiot or a liar.
Or in Mona’s case, both.
Screw her. And yes, that’s about all the seriousness she deserves.
Maybe one day I’ll break out all the fawning emails she sent me before we parted ways over my support of the NSA program — and a disagreement over the extent of executive power and over what co-equal branches of government actually means.
But until then, I’ll just say that Mona, Greenwald, et al., consistently try to paint those who favor different strategies for achieving similar ends as wretched barbarians who are “in the tank” for someone or other — conveniently bracketing out all the instances where the object of their cartooning has criticized that someone they are supposedly in the tank for.
Ironically, Greenwald and Mona must not have exchanged emails today, because as she was writing about my being in the tank for Bush, Greenwald was quoting me in a post titled ” Defeatism and attacks on the Commander-in-Chief during a time of war.”
Of course, in typical Greenwald fashion, he doesn’t note anything I write in my updates or any of my follow up posts on the subject.
Comment by Jeff G —
August 14, 2006 @ 11:40 pm
Oh. And one more thing. Why not link directly to the post where I supposedly say such horrific things?
Why link to Greenwald and Lemieux’s strained misrepresentations?
Filters. Layers. Spin.
Comment by Mona —
August 15, 2006 @ 9:07 am
Jeff, if one follows the link from Greenwald’s site to yours, one finds your discussion of Shelby Steele, in which your point is that we need to kill more ruthlessly, but those blasted “identity politics” are limiting our ability to fight wars to win. Iraq is a boondoggle, and rather than blame the Administration that got us there, you are wandering off into yet another rant about the left and, riffing off of Steele, blaming the left for our war’s going badly.
You have been know to disagree with the Bush crowd on some domestic social issues, it is true. But for you, and the other neos (including Instapundit), those issues can never be reason enough to decide the GOP is unworthy of support ; national security reasons, and your desire for war, trump all else. Your disappointment that the Middle East may not be entering into a hellacious war, with Lebanon as the flashpoint, was palpable. You think reaching a cease fire was so 80s.
I gave links to two sources and suggestions to follow through to your originals, as well as my own direct link to you. But the post what not All About Jeff, so that was the extent of it.
You are a funny guy, but became no longer entertaining to me when you also became excessively crude and gross, e.g., the bizarre screed you posted about Tristero — involving peanut butter, your dog’s dick, and Tristero’s alleged sexual designs on your canine. Others have extensively documented and discusses your unusual and excessive interest in sewer-level sexual put-downs of people you disagree with; even the very gentle Hilzoy felt moved to distress over your behavior. So, where I once found you amusing, I now find your writing bitter and even somewhat unstable.
Jeff, I’m not a liar, I’ve watched what I regard as a descent into crankdom at your site ever since it began to be apparent that Iraq is a major f*ck up, in tandem with public poll numbers showing widespread disgust for Bush and the GOP. You are not alone, but many on your team are not behaving like rational adults in the face of facts and a public that say you have been wrong.
In any event, it is hard for me to understand a “libertarian” who accepts illegal warrantless spying, torture (however you define it, it is not as our law does), and whatever you meant by calling for “increased lethality” in war. Then there was your speculation that those who disagree with you on national security matters are so Other, that we may be poised on a civil war entailing that you and your kind will live in separate parts of the nation.
Comment by Defense Guy —
August 15, 2006 @ 10:49 am
I would bet that you don’t even understand the irony in your attempt to determine who might be an inauthentic libertarian.
Comment by malaclypse the teritary —
August 15, 2006 @ 11:04 am
Okay, fine. Such and such is or is not a libertarian. Allahu Akbar, oh defender of the faith. The forest here, which you seem to be missing for your ideological trees, is that tendentiousness is not tantamount to principle.
Libertarianism, as you define it, is not classical liberalism; it is merely another self-referential, dogmatic, political exegesis. Classical liberalism (to which many who call themselves “libertarians” aspire) makes no truck with litmus tests and holier-than-thou pretense. Classical liberalism is political empiricism. It is about engendering and preserving a politics that guarantees diversity of opinion. Your libertarianism evinces a cute little Randian litergy wherein you are apparently, what? Rand’s Rottweiler?
Vis-Ã -vis Herr Goldstein, you have chosen wisely to avoid him as you have demonstrated your constitution to be much too delicate for his prose. Which, no matter, those of us who enjoy his Prairie Fire to your Boone’s Farm are happy to avoid the kvetching that the drink is too strong.
Trackback by Inactivist —
August 15, 2006 @ 11:54 am
Libertarian?…
In light of the recent debate between McQ at QandO and Mona at Unqualified Offerings over who can lay proper claim to the term ‘libertarian’, let me make a proposal.
The pursuit of liberty within US politics is actually harmed by usage of the term “…
Comment by Mona —
August 15, 2006 @ 11:55 am
Irony, Defense Guy? Oh, I see plenty of it, as in many “neo-libertarian” quarters I’ve been dismissed as no true libertarian, but rather, a “Democratic hack,” an “intellectual concubine” of a purported left-winger, and no true libertarian myself, or else I would be a Republican planted firmly in the Bush GOP’s camp.
As I’ve commented elsewhere, when I contacted the Republican Liberty Caucus in the early 90s, I cleared my fitness for membership by stating I tended toward the “pro-life” side of the abortion debate. The RLC spokesman said that was fine, their only non-negotiable was drug warriors. That “litmus test” made sense to me.
But the political landscape has vastly changed since then, and I am attempting to incite a discussion of what presently constitutes a bottom-line for a person to — in intellectual honesty — parade as a “libertarian.”
Comment by Mona —
August 15, 2006 @ 1:40 pm
I just took a peak at Jeff Goldstein’s blog, since he is offended and otherwise critical of my comments about him and I wondered if there was anything he recently posted that might alter my assessment (there isn’t).
“Neolibertarian” Jeff maintains a side bar that scrolls statements made about about him by both admirers and detractors. When he hosts the latter, he seems to intend to highlight their remarks as meritless/stupid.
However, these words from Scott Lemieux — at Lawyers, Guns and Money — that Jeff currently has displayed are wholly accurate, and support my skepticism that Jeff is any sort of libertarian, if the label is to have coherent meaning:
Comment by Mona —
August 15, 2006 @ 2:17 pm
Er, I mean I took a peek at Jeff’s site; I didn’t steal one of his mountaintops.
Comment by Xrlq —
August 15, 2006 @ 2:58 pm
Shorter Mona: anyone who doesn’t read FISA and the Fourth Amendment the way I do isn’t really a libertarian.
Comment by Mona —
August 15, 2006 @ 3:16 pm
xrlq: The Bush Admin reads FISA the way I do. And they just lost their specious legal arguments which they had purporting to mean left them unbound by FISA — which they admit they are not complying with. See my post about what Andy McCarthy now concedes is true in the wake of the recent Hamdan decision — Bush is in violation of FISA with no feasible defense for being outside of a criminal statute.
Comment by Xrlq —
August 15, 2006 @ 4:20 pm
Gee whiz, Mona. Until that last comment, I remained skeptical of your cock-sure attitude about FISA and the U.S. Constitution, which neither begins nor ends with your version of the Fourth Amendment. After all, while you repeatedly claimed the NSA wiretaps were a clear-cut violation of FISA, it’s not as though you exactly quoted FISA or otherwise betrayed any substantive knowledge of its scope even if the law did operate in a constitutional vacuum, let alone addressed the constitutional limitations that would impact this analysis even if the law said what you seem to be assuming it says. But now that you’ve repeated the same unfounded allegations by using boldface type and citing a Supreme Court case that doesn’t even mention FISA or the NSA wiretaps, then I guess you must know what you’re talking about after all. How could I possibly have missed that?
Comment by Mona —
August 15, 2006 @ 4:56 pm
xrlq, Previously, including I believe here, I have linked to the exhaustive Compendium of NSA Arguments. These arguments were developed at Greenwald’s site beginning last December, and for some 6-8 weeks he, I, and many other lawyers and well-educated laypeople parsed the statute, the relevant case law, and the DoJ arguments as they were being spit out. (The comments reflecting that intellectually stimulating discussion all got chewed up when Greenwald recently switched to haloscan.)
Plenty of right-wing lawyers were weighing in that Bush was violating the law with nothing but a frivolous legal theory as a defense. (At Greenwald’s and elsewhere.)
It was always clear from the outset that Bush is in indefensible violation of a criminal statute when he engages in ongoing eavesdropping of U.S. persons on U.S. soil; it would be the odd libertarian who would even want to see a successful defense of that, but as it happens, there isn’t such a defense.
Comment by Mona —
August 15, 2006 @ 4:59 pm
But now that you’ve repeated the same unfounded allegations by using boldface type and citing a Supreme Court case that doesn’t even mention FISA or the NSA wiretaps, then I guess you must know what you’re talking about after all. How could I possibly have missed that?
And after you’ve digested the Compendium that I made a modest contribution to, please observe that it is Andy McCarthy — lawyer and NRO Bush apologist extraorinaire — who concedes that Hamdan is fatal to Bush’s FISA defense.
Comment by Xrlq —
August 15, 2006 @ 9:28 pm
Mona, I didn’t ask for Andy McCarthy’s arguments on FISA, and I sure as hell did not ask for Glenn Greenwald’s. I asked for yours. Have you even read this law you claim to know so much about?
Comment by Mona —
August 15, 2006 @ 10:31 pm
Yes, xrlq, I read FISA the day the story broke in the NYT — and you get some of my views when you read what is at Greenwald’s, since his Compendium reflects an intellectual endeavor led by him, but which included many lawyer and non-lawyer contributors. I was in the thick of that.
Further, I linked to the FISA statute somewhere here in another post.
And, I gave QandO a tutorial in the applicability of Youngstown vis-a-vis FISA, which McQ was grateful for, and which they discussed in their podcast that week.
My understanding, as I modestly helped shape it, is that found in Greenwald’s Compendium, a Compendium I asked him to put on his sidebar. I was involved in that effort, and ratify it as my own views.
What do you say to those arguments?
Comment by Zeuswood —
August 16, 2006 @ 7:39 am
Comment by Zeuswood —
August 16, 2006 @ 7:42 am
Duh. A link doesn’t work unless it has text. Old thoughts of mine here from last November, in part in response to the bizarre neolibertarian concept.
Comment by rateoforange —
August 16, 2006 @ 8:27 am
Part of becoming politically viable is accepting that people who share many of your views won’t share all of them. I guess some are determined to inhabit political backwaters.
Comment by Xrlq —
August 16, 2006 @ 9:08 am
My general objection to these non-arguments is to Glenn Greenwald himself, who is an obnoxious, dishonest political hack, not a serious constitutional scholar. Any argument that cannot be made without relying on his propaganda is an argument not worth making at all. A typical Greenwald post – and this one is no exception – is 80% invective, 10% “because I said so” self-links, 9% dishonest links to external sites that say something very different from what he claims they say, and 1% substance on a good day. Case in point: among the many dishonest links in this particular post is the one to Youngstown Co. v. Sawyer, 343 U.S. 579 (1952), which I will charitably assume you haven’t read, because if you have, you’re every bit as dishonest as Greenwald in quoting it as though it were dispositive. Youngstown doesn’t say anything at all about wiretaps, privacy interests, or anything else that can reasonably be compared to the issue at hand. Nor does it call into question the basic concept of inherent executive powers, which have been consistently asserted by every administration before and after 1952. All it does say is that whatever inherent powers the executive branch has, do not reach far enough to authorize a President to seize private property for purposes only tangentially related to war. The Youngstown court nicely summed up its position here:
So what, one might ask, does that tell us about the power of the executive to spy on our enemies during wartime? The most intuitive answer, not to mention the correct one, is “absolutely nothing.” But if you’re Glenn Greenwald or a member of his personality cult, I guess the answer is “Youngstown means the executive has no inherent authority whatsoever, or at least no authority to do anything Glenn Greenwald doesn’t want it to do.”
Greenwald’s statutory analysis is equally dishonest, equally snotty, and equally wrong. While purporting to debunk “the statutory arguments” surrounding FISA, he conveniently overlooks the most fundamental ones of all, namely, (1) whether international wiretaps of the type at issue here are covered by FISA in any contexts, and (2) if so, whether Congress intended FISA to usurp the executive’s power to spy on enemies in wartime to the full extent allowed by the Constitution in enacting it. Neither of these objections is addressed in his screed – at all. You’d think they would be, seeing as the wiretaps in question don’t exactly involve domestic conversations between U.S. citizens, but rather, international telephone conversations between suspected terrorists abroad, most of whom are noncitizens, and almost all of whom are calling from countries where wiretapping is commonplace. Given that, one might expect the self-styled expert to at least consult the basic statutory definition of “electronic surveillance” (try this for starters) before getting too high on his horse. But he didn’t, and apparently, neither did you or any of the other legal eagles who contributed to his one-sided “compendium” of pseudo-legal BDS propaganda.
If you think lazy links to a dishonest blogger are good enough for you to “prove” whatever it is you wanted to believe in the first place, then more power to you. Whatever floats your boat. But given how thin your “legal” arguments are, and how unpersuasive they are when preached to anyone who isn’t already a member of your quaint little choir, it doesn’t seem too much to ask that you stop acting like an arrogant jerk toward everyone who doesn’t subscribe to your allegedly self-evident version of The Truth. You might also want to think about canning your specious use of the word “specious” to describe a constitutional position which (1) has no obvious connection to Hamdan one way or the other, and (2) if linked to Hamdan, as you claim, could not have been known to the Administration at the time the non-scandal broke, and (3) if linked to Hamdan, as you claim, is so friggin’ “specious” that only 4 of the current 9 Supreme Court Justices will sign on to it.
Setting all the gaping holes in your logic and analysis, let’s suppose arguendo that a real legal scholar were able to show to everyone’s satisfaction that NSA did in fact violate FISA, and that it had no non-frivolous statutory or constitutional defense. Even assuming all that – and that’s a lot to assume – so what? Faced with the Hobson’s choice between protecting al Qaeda’s non-constitutional civil rights and protecting the rest of us from getting killed in another 9/11 attack, are all “real” libertarians really expected to choose the former over the latter? If so, welcome to the new Libertarian Party of one.
Comment by Mona —
August 16, 2006 @ 9:51 am
Xrlq: Everyone from Alberto Gonzalez, to John Roberts and Sam Alito in their confirmation hearings, have said the FISA and/or any programs predicated on a claim of “inherent authority” would be parsed via Jackson’s opinion in Yongstown. All your invective about Greenwald and myself doesn’t change that. Youngstown has been considered by justices in Hamdi and again in Hamdan — it isn’t restricted to seizure of mills, and as you are a lawyer, you are well aware that that is the nature of precedent — the rationale and holding are then applied beyond the particular facts of the initial case.
Everyone from Orin Kerr to Richard Epstein to Reagan-FBI Director appointee William Sessions, parse these issues the same as Greenwald and I do, and find Bush to be in violation of FISA with no merit to his legal defense, by virtue of Youngstown.
You are interested in name-calling and continuing your obsessive crusade against Greenwald, whom you clearly despise. Your hatred for the man does not, however, change the fact that his legal analysis is accurate, and even Andy McCarthy has conceded defeat.
That’s just the way it is — Youngstown forecloses Bush’s illegal, warrantless surveillance. Search QandO for my name w/ Youngsotwn, if you wish to continue to learn my legal opinions. I doubt that is your actual interest, however, and I will not reply to you further in this thread.
Comment by Brian —
August 16, 2006 @ 10:41 am
Who, exactly, gets to determine who qualifies as libertarian? Not you I hope.
Comment by Xrlq —
August 16, 2006 @ 2:14 pm
I notice that you completely avoided the issue of the plain text of FISA, which by now I think I can safely conclude you haven’t read, nor have you provided any links to pieces by Orin Kerr supposedly concluding that the NSA warrants were illegal. Not saying there aren’t any, as I don’t read that blog every day, but the last time I did his conclusions were a lot more tentative than yours, and with good reason. In any event, “so and so said it, I believe it, that settles it” is a lame substitute for a legal argument, no matter who your so-and-so may be. If the argument were really that strong, or if you even understood it, you’d have little trouble making it yourself rather than pointing to the fact that others allegedly agree with you.
Contrary to your protestations, I have no special “hatred” for Greenwald. I do, however, have my share of contempt for individuals who refuse to debate issues honestly, and Greenwald is among the worst offenders in this regard. You just don’t care because his dishonest smearing is directed at bloggers you like to see smeared anyway.
Last and least, while you’re busy not-responding to my repeated requests for actual evidence to back up your self-evident truths, perhaps you will finally get around to responding to Patterico, instead? To save everyone the trouble of going on a wild link chase, I’ll reproduce his question in full, below:
Comment by bomb their ass and take their gas —
August 16, 2006 @ 6:42 pm
You libertarians need to take some more drugs. And if you want to purge anybody, purge the lawyers putting all these foolish thoughts in your heads.
Bush is commander in chief, and he has constitutional authority to listen in on the enemy abroad, or here for that matter. That’s his job. No congress or president can take that power/responsibility away, short of a constitutional amendment. Bush rightly ignored that FISA nonsense, even as he fully informed the legislative leaders of what he was doing. The Constitution was guidepost, and common sense too.
Stop tilting at windmills. We’ll settle into this generations-long struggle against islamofascism in a few years, just like the Cold War. All our civil liberties will be sorted out in a new kind of “FISA” agreement, to deal with the long term threat. But initially, we had to go to the ramparts, or risk dying en masse. You extremists will just have to deal with these facts, because libertarians understand all this full well, and we approve of this process.
Comment by Mona —
August 17, 2006 @ 10:27 am
haven’t read, nor have you provided any links to pieces by Orin Kerr supposedly concluding that the NSA warrants were illegal.
There are no such links, because neither Orin, nor I, nor anyone else but you is discussing whether “the NSA warrants” are legal. Orin linked to Greenwald’s discussion, and Orin himself addressed the actual issue — and you claim I haven’t read FISA! — namely, that the NSA surveillance of U.S. persons is being done without warrants. It is in the absence of warrants, xrlq, that the illegality lies, not in some purported defect in non-existent warrants.
Kerr concludes Bush’s warrantless NSA program is likely not a violation of the 4th Am (an unsettled area of law), but that the warrantless surveillance very likely is illegal for violating FISA.
Search Greenwald’s site; I think the links to Orin’s discussion should come up. Many are the venues where I’ve set this all forth, including QandO, where you can search for them. However, if you are so far behind the curve as to think the issue is whether “the warrants are legal,” well, then you have so little grasp of the issue that my rendering a tutorial would be far too time consuming.
Comment by Xrlq —
August 17, 2006 @ 11:28 am
In case it wasn’t obvious, “NSA warrants” was a typo. Of course I know that that the NSA wiretaps in question were conducted without warrants. So I typed one word that was in the back of my head while intending to type the other. Sue me.
FWIW, I have searched Q&O’s archives for references to “Mona” and Youngstown, hoping to find that magic bullet of a legal argument that has been sorely lacking here. Among the Q&O archives, I found exactly what I expected: more of the same tired Mona-nonsense Q&O readers have long ago come to know and not necessarily love. I also re-read McCarthy’s essay on Hamdan to see if it really was as gloomy as you claimed (it was), and Hamdan itself to see if the gloom was warranted (some was, but not nearly as much). While I agree with McCarthy and most other non-liberals that Hamdan was a horrible decision, and also agree with McCarthy that it doesn’t bode well for any aspect of national security including NSA surveillance, I don’t think it’s anywhere near the slam dunk you or he seem to think it is. For one thing, key parts of the decision are very fact-specific, e.g., noting that Hamdan was charged for alleged war violations that occurred prior to the declaration of war / AUMF, or pointing out the very specific dangers of entrusting the executive branch with creating tribunals – judge, jury, executioner, etc. – facts that appeared important to the majority in Hamdan but which have no application to NSA. Second, even if one ruling did logically require the other, McCarthy errs in assuming Justices Breyer and Kennedy will apply any given rule consistently on every issue, rather than picking and choosing a desired political result on a case-by-case basis, as both are wont to do (Breyer being the more egregious of the two, having found a way to rule on a single day that crosses on public land in Texas are constitutional, while crosses on public land in Kentucky are not). Third, the case is not about FISA, so it is not binding precedent on the issue until and unless a court rules that it is. With any luck, by the time this issue reaches the Supremes, that institution will have replaced its oldest, goofiest and most senile member with someone more sensible, and it only takes one to convert your 5-3 terrorist win into a 5-4 decision the other way. Better still, if that personnel change occurs anytime between now and January, 2009, you will have voted for that result yourself. If you believe any serious conservative judge would rule in your favor on FISA, I’ve got a bridge to sell you (thanks in no small part to the warrantless NSA wiretaps you’re so worked up about, and without which said bridge would no longer exist).
None of these sources, however, touched on my earlier question about the scope of FISA itself, namely, whether the monitoring of known or suspected non-U.S. terrorists, outside the U.S. and placing calls from countries where no person speaking on the telephone has a reasonable expectation of privacy, nevertheless constitute an “electronic surveillance” within the meaning of FISA. Or, alternatively, if they don’t, then why on earth we should be discussing FISA at all.
You can start by addressing that very basic question, which ought to be easy for anyone as well versed in FISA as you claim to be. Then you can explain why strict adherence to this Carter-era blunder should be elevated so far above everything else as to make it the sine qua non of “real” libertarianism, such that otherwise libertarian folk like myself and my fellow neolibs do not qualify as sufficiently libertarian, while anti-liberty jihadists like Russ Feingold, do.
Or you can take the easy way out and just make a little more hay of the fact that I inadvertently wrote “NSA warrants” when everyone knows I was talking about warrantless NSA wiretaps. Your call.
Comment by Xrlq —
August 17, 2006 @ 11:29 am
P.S., still waiting for your long-overdue response to Patterico’s simple question.
Comment by Mona —
August 17, 2006 @ 12:56 pm
xrlq, good news! A federal court has ruled on the illegal warrantless spying, parsing FISA and Youngstown just as I, Greenwald, Kerr and many others have done.
It will be most interesting to see on what grounds this is appealled, given that the very last thing the Bush Admin wants is for the question of its “inherent authority to spy in violation of the law” to end up before the Supremes, where it would lose — the DoJ can count to 9.
Comment by Xrlq —
August 17, 2006 @ 3:23 pm
Xrlq (that would be me):
Oh, bugger. I must have jinxed the game by saying that. For once, though, I actually agree with Mona. If weakness on national security equals libertarianism, this sweepingly “libertarian” ruling by an ultra-”libertarian” judge appointed by the most “libertarian” President in modern U.S. history is good news indeed -for the Bush Administration, that is. Let’s hold a national referendum on the issue – shall FISA be amended to allow NSA to monitor international chatter for terrorist threats? It would pass overwhelmingly – enough even to support a “no, you dummies” amendment to the U.S. Constitution in the unlikely event this oddball ruling stands up on appeal.
Now, back to your unfinished business with Patterico…
Comment by Mona —
August 17, 2006 @ 3:50 pm
Let’s hold a national referendum on the issue – shall FISA be amended to allow NSA to monitor international chatter for terrorist threats?
FISA doesn’t apply to purely “international chatter,” and the NSA is free to monitor all of that as it likes, provided that with allies like the U.K it does so with permission and per that nation’s laws. (The U.K. is virtually always cooperative, which is great.)
Rather, the issue here is whether the President must, as FISA requires, obtain warrants for calls in which one party is a U.S. person on American soil. The NSA may monitor those calls as well, as long as a FISA Court judge has issued the warrant — indeed, the NSA may do so for up to 72 hours and seek the warrant retroactively.
Have you read FISA?
Comment by Mona —
August 17, 2006 @ 3:59 pm
Oh, and by the way xrlq, this is how real libertarians react to the news when a judge demands that the law be followed, and that warrants be sought when the govt spies on U.S. persons on our soil.
Comment by Xrlq —
August 17, 2006 @ 5:54 pm
I didn’t say “purely” international, whatever that is supposed to mean, I said international. The U.S. is no less of a nation than any other, so I fail to see why you think a transmission between the U.S. and other countries is any less “international” than a transmission between any other two countries. Let’s take a concrete example, Iyman Faris. He was in the U.S. while communicating with al Qaeda folks abroad. He was not a known or suspected terrorist at the time, and NSA had absolutely no reason to suspect him of anything – and thus, no reason to target him in particular, FISA warrant or no. They did, however, have good reason to monitor international (in this case, U.S. to non-U.S.) chatter, however, and upon doing so, heard repeated references to the Brooklyn Bridge. That piqued their interest, and at that point, it made sense to seek a warrant, be it a FISA warrant to allow them to target him for further monitoring, or an arrest warrant. But if the NSA had followed The Law According To Mona, they never would have reached that point, because they never would have been able to monitor the chatter at all. As with Atta and the rest, no one would have heard of Faris until after he had blown up the bridge, and any unfortunate souls who happened to be on it. Is that the result you want?! Because make no mistake about it, if your side prevails on this issue legally, it is precisely the result that you will get.
Indeed I have, which is why I know your statement that “FISA requires [the President to] obtain warrants for calls in which one party is a U.S. person on American soil” is not quite true. The portion of the definition of “electronic surveillance” that you appear to be working off of, 50 U.S.C. 1801(f)(1), does not merely require that one of the parties to the conversation be a U.S. person on U.S. soil – it also requires that the information be collected by intentionally targeting that person, and not by targeting the other or by monitoring conversations randomly, as in Faris’s case. Even if that last criterion was met – and the smart money says it wasn’t in most if not all of the cases at issue – it’s still not an “electronic surveillance” for purposes of FISA unless the surveillance took place under circumstances where a person has a reasonable expectation of privacy, and where a warrant would be required for law enforcement purposes. Do you really think that a person who places a call to a known police state has a reasonable expectation of privacy with respect to that call? And if not, what makes you think FISA applies to the situation at all?
Last and least, you can save the bit about “Reason” being the standard-bearer of what constitutes “real” libertarianism. I was an avid reader of the magazine for 14 years straight, thought I did notice the quality of the magazine dropping precipitously after Virginia Postrel left. The penultimate straw came two years ago, when Tim Cavanaugh thought it clever to tell a commenter to “buy a f***ing ad already.” The last came when I was banned from the site for implicitly calling veteran attorney Michael McMenamin a liar for intentionally obscuring the difference between civil and criminal contempt. I suppose I should have been more charitable and said McMenamin was either a liar or the world’s most uninformed attorney, but geez Louise, you’d think a publication of that stature could afford a legal analyst capable of finding his butt with both hands and a flashlight.
So no, I have little use for today’s incarnation of Reason. I don’t think Nick Gillespie’s hippy-dippy rag of today is any more or less libertarian than Virginia Postrel’s fine publication of yesteryear, but it certainly is a lot more knee-jerk, so while Sullum’s own contribution to the thread was largely sober, I’m not surprised you find plenty of commenters agreeing with your take on a court ruling which any serious lawyer could only describe as wacky. Allege FISA violations all you want, but bringing up the Fourth Amendment is a huge stretch, and bringing up the First Amendment and the separation of powers is nonsense on a stick. If there is a real separation of powers problem here, it’s with FISA itself, with the legislative branch wrongly usurping the power of the executive. If I were on your side of the FISA debate, I’d be embarassed, not encouraged, by today’s ruling.
Patterico?
Comment by mcg —
August 17, 2006 @ 8:38 pm
If the Democrats play their cards right, a lot of ’tarians will end up tilting toward them — as we used to heavily tilt GOP — for many of the reasons (some of) the above-linked AC articles examine.
What’s that smell?
The smell of fear.
</sarcasm>
Comment by Chuck —
August 17, 2006 @ 9:57 pm
Freedom of thought and freedom of association, one might think, would be basic libertarian values. If somebody wants to call himself a “libertarian,” does he thereby forfeit those freedoms? In other words, is libertarianism like the kind of feminism that chased Larry Summers out of Harvard? I am reminded that once Ayn Rand became famous, she created her own cult of personality.
Life is too short for me to give a damn about the opinions of anyone so foolish as to think that there is some great prestige in being an arbiter of “true libertarianism.”
Comment by Xrlq —
August 17, 2006 @ 10:15 pm
Good news, Mona, your views will soon be getting a lot more exposure than you likely imagined. Heh.
Comment by Brian Carnell —
August 17, 2006 @ 11:06 pm
“Freedom of thought and freedom of association, one might think, would be basic libertarian values. If somebody wants to call himself a “libertarian,†does he thereby forfeit those freedoms?”
It’s amazing how people freak out when you actually assert that, just maybe, a word like “libertarian” should have a fairly obvious meaning rather than being a catchall phrase that could apply to anyone from Ralph Reed to Ralph Nader.
On the other hand, libertarian=”Reason Mag+Cato” is not much of a definition of libertarianism.
Comment by Jim Henley —
August 18, 2006 @ 10:11 am
OMG, xlrq, are you coming into the comments thread of another blog to brag about getting an Instapundit link? Isn’t that kind of . . . tawdry?
Comment by Jim Henley —
August 18, 2006 @ 10:17 am
So from a libertarian perspective, what was so bad about the JC presidency anyway? He’s the guy who deregulated trucking and airlines. Has ANY president since taken a market-enhancing action remotely as sweeping or as beneficial to the country as that? He also appointed Paul Volcker to the Fed and backed Volcker’s tight-money policies, crucial to eventually breaking the back of inflation, even as they jeopardized his reelection chances. I could be wrong, but I don’t remember Carter raising marginal tax rates. He inherited high taxes and kept them in place, so you can accuse him of a sin of omission, but what actively anti-libertarian policies did Carter pursue that come close to balancing the serious weight of deregulation and inflation-busting?
Comment by Xrlq —
August 18, 2006 @ 11:42 am
Jim:
Perhaps, but no more so than it was for Mona to brag about a court ruling she knows has no basis in law, just because it reaches a result she happens to like. Besides, the point of my comment was not really to brag about an Instalink, so much as to gloat over the fact that it was to a post describing Mona in a none-too-flattering light. That the post in question happened to be my own was just the icing on the cake.
Well, for starters he appointed many, many corrupt judges like the one we were all reminded of yesterday. Generally, these judges rule in an activist manner that is hard-core liberal, not libertarian. Yesterday’s ruling was mostly a-libertarian, but the same judge also made an extraordinary effort to snatch an affirmative action case away from another judge a few years back, just to prevent that judge from ruling against racial preferences. Other Carter appointees, such as Stephen Reinhardt of the Ninth Circuit, have judicially nullified the Second Amendment, while others still have tortured the First Amendment to protect government school monopolies against the public rather than protecting the public against the government. The only good thing about Carter’s judicial gift-that-keeps-on-giving is that no one resigned from the Supreme Court during his tenure.
On other issues, deregulation was nice, but it would have happened under Reagan anyway, or maybe even under the Ford Administration if the 1976 election had gone the other way. Less nice was the confiscatory income tax rate, which you rightly noted that Carter inherited rather than creating singlhandedly, but which Carter nevertheless defended to a degree no serious Democrat would dare advocate today.
“Inflation-busting?” Surely you jest. The only thing Carter busted about inflation was the popular myth among economists that double-digit inflation and double-digit unemployment could not coexist. Boy did he prove them wrong! So I guess Carter did contribute something to the science of economics, but at what cost?
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Comment by Charles Hueter —
August 18, 2006 @ 2:12 pm
If weakness on national security equals libertarianism
Admittedly, I’m an anarchist so I’m even more marginal than the average libertarian, but let’s unpack this.
First of all, which American political ideology places more emphasis on the cessation of unjust violence against individuals and their property? I think it’s fair to say libertarians care more about that issue than anyone else. Aggregating this to the community/regional/national level doesn’t diminish that concern. Self-defense in the face of singular and collective threats is not alien to libertarians.
Lessening some of our enthusiasm for the current method of national defense is this: in the process of attempting to secure the nation from threats (i.e., defense against rights violations), the state inevitably commits rights violations against the very people it intends to protect. Taxation, inflation, collectivization of transportation security, prior restraint limits on speech (involving legitimate private communications property) that pertains to national security secrets…if this is “strong national defense” then some of us aren’t worried about being called “weak” on it. As Billy Beck said, this is about principles and being strong on them as well.
Comment by bomb their ass and take their gas —
August 18, 2006 @ 3:38 pm
“…the very last thing the Bush Admin wants is for the question of its ‘inherent authority to spy in violation of the law’ to end up before the Supremes, where it would lose…”
It might, barely, assuming the current makeup of the SC, and perhaps not even then. But it won’t if Bush adds even 1 more nominee, I would think.
In the near term, this commie-snuggling Crockett-protege judge has just handed the evil Bush/Rove tandem a MAJOR campaign issue, and this after the Angry Left had begrudgingly confirmed the nomination of the uniformed CIA nominee who CREATED this electronic intelligence program. They tried to bury this, but now the issue is back on the table, politically speaking, just in time for Rove to make hay with it this November.
There is no chance you can get the public to go along with your position, as they know the next bomb might go off tomorrow, even if you extremists don’t. I think Rove musta got sexually aroused when he heard about this ruling.
You extremists should put aside this nonsense, because you’re just fanning the flames of what it is that you think you’re opposing.
Comment by Xrlq —
August 18, 2006 @ 10:51 pm
Mona:
Orin Kerr’s convinced the wiretaps are illegal, eh? Tell that to Orin Kerr.
Comment by bomb their ass and take their gas —
August 23, 2006 @ 4:44 pm
“FISA doesn’t apply to purely “international chatter,†and the NSA is free to monitor all of that as it likes, provided that with allies like the U.K it does so with permission and per that nation’s laws. (The U.K. is virtually always cooperative, which is great.)”
Hmmmmm, so basically, to turn around your above scenario, what you’re saying is that all the US government has to do to comply with this newly-minted restriction on presidential powers is for the president to outsource the electronic intelligence gathering process to foreign nations, and let THEM listen in on US residents’ telecons with Al Qaeda?
In other words, it’s ok with you if FOREIGN intelligence operators listen in on US residents (without any FISA court warrant of course, but perhaps we should set some Brussels kangaroo court to work on that one, eh?), and the US can take advantage of that intelligence when the foreigners pass it on to us through negotiated agreements, but US intelligence operators can’t listen in to the same telecons? Is that it?
In other words, you extremists have just provided the US government at least a partial incentive to send the intelligence gathering process offshore. Congratulations. Let’s hope it’s the Brits, as they’d be our best hope.
Also congratulations to that idiot judge, who has gleefully provoked a Constitutional showdown on separation of powers, which no sane person should want. You lawyers and judges need to step away from this, hopefully for a good long while, and let the legislative and executive work this through. We’ve fought many a war without your good intentions, so why don’t we keep that string going, shall we?
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