I’d just like to agree publicly with every last word of this piece by Glenn Greenwald:

[T]he bill recently introduced by Joe Lieberman and John McCain — the so-called “Enemy Belligerent Interrogation, Detention and Prosecution Act” — now has 9 co-sponsors, including the newly elected Scott Brown. It’s probably the single most extremist, tyrannical and dangerous bill introduced in the Senate in the last several decades, far beyond the horrific, habeas-abolishing Military Commissions Act. It literally empowers the President to imprison anyone he wants in his sole discretion by simply decreeing them a Terrorist suspect — including American citizens arrested on U.S. soil. The bill requires that all such individuals be placed in military custody, and explicitly says that they “may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners,” which everyone expects to last decades, at least. It’s basically a bill designed to formally authorize what the Bush administration did to American citizen Jose Padilla — arrest him on U.S. soil and imprison him for years in military custody with no charges.

In what way does this bill differ from pure, thought-experiment grade tyranny? Of the kind that, in our country at least, is only dragged out to gesture at when you’re making an argument about something else entirely? And then you put it back up on the shelf with a quiet “but of course, that doesn’t happen here…”

I’m happy to see that disenchantment with Woodrow Wilson – the most bizarre candidate for the pantheon of great American presidents – is reaching a wider audience on the American Right. But this nascent critique of Wilsonian progressivism seems to have missed one of his worst legacies. Namely, Wilson’s blatant disregard for civil liberties (from Wikipedia – emphasis mine):

On the home front in 1917, he began the United States’ first draft since the US civil war, raised billions in war funding through Liberty Bonds, set up the War Industries Board, promoted labor union growth, supervised agriculture and food production through the Lever Act, took over control of the railroads, enacted the first federal drug prohibition, and suppressed anti-war movements.

–

To counter opposition to the war at home, Wilson pushed the Espionage Act of 1917 and the Sedition Act of 1918 through Congress to suppress anti-British, pro-German, or anti-war opinions. He welcomed socialists who supported the war and pushed for deportation of foreign-born radicals.^[86] Citing the Espionage Act, the U.S. Post Office refused to carry any written materials that could be deemed critical of the U. S. war effort. Some sixty newspapers were deprived of their second-class mailing rights.^[87]

Wilson is usually associated with a stirring ideological defense of democratic self-determination. In practice, this amounted to little more than crude ethnic partitioning, but more importantly, Wilson’s respect for the forms of Republican governance was severely lacking.

Perhaps Wilson’s enthusiasm for curtailing civil liberties was entirely unrelated to his progressive politics. But it’s hard not to see the same impulses that animated Wilson’s domestic agenda – a desire for control, rank disregard for individual liberty, confidence that the messy business of civil society can be micromanaged from Washington – behind his horrific record on civil liberties.

So my question for newly-converted Wilson-phobes is simple: If you’re concerned about government overreach, why restrict your criticism his domestic legacy? Why do torture, indefinite detainment, and the PATRIOT ACT get a free pass? Compared to his draconian wartime crackdown, many aspects of Wilson’s progressive agenda look downright benign, or even admirable, in retrospect. Wilson’s blatant disregard for civil liberties, on the other hand, remains one of the most enduring – and bipartisan – legacies in contemporary American politics.

The Washington Post has an interesting article up today outlining some illegal activities in which the FBI engaged in the collection of phone records in the counter-terrorism fight by failing to adhere to their own procedures and, “technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.”

Of course, the whole article is worth a read, but a line from the beginning caught my eye in particular,

Bureau officials said agents were working quickly under the stress of trying to thwart the next terrorist attack and were not violating the law deliberately.

I believe that that is true and, in fact, I believe that under the vast majority of recent cases involving improper to illegal behaviour, those involved were not intending to do wrong and were labouring under the sincere belief that their actions were designed specifically to avoid a greater potential wrongdoing. The sincerity of that belief is why I find it so dangerous and, in no small part, why I think a healthy skepticism about the actions of government, especially in those recesses of those dark corners of gray, isn’t just warranted — it is mandatory. [Read more →]

A welcome manifesto for conservative civil libertarians from a former Republican congressman: [Read more →]

Some of the coverage from National Review and The Washington Times really has to be read to be believed. A guy whose career highlights include chaining a pregnant woman to a bed and filing trumped-up charges against a judge is suddenly the victim of “persecution.”

David Weigel reports that David Keene of the American Conservative Union and Grover Norquist of Club for Growth Americans for Tax Reform have come out in favor of closing Gitmo and trying terror suspects in a federal court. [Read more →]

For a long while last year, I flirted with the idea of voting for Obama.  But after he showed a lack of backbone on warrantless wiretapping and the Libertarian Party nominated a reasonably serious candidate, I found myself voting for Bob Barr.  Still, I had passionately backed Obama during the primaries and thought he was the most promising major-party Presidential nominee on civil liberties issues in a very, very long time.  As between Obama and McCain, there was no contest that Obama was the far preferable candidate.

Sadly, I am increasingly coming to the conclusion that the Obama Administration has an extraordinarily low regard for some of our most fundamental freedoms.   This conclusion is not based on any one incident, but on the accumulation of many small incidents.  This is also not to suggest that the Obama Administration is on the verge of creating a secret police or anything resembling the totalitarian visions of our nightmares.  But there comes a point where it becomes clear that concerns for certain freedoms simply are not entering into the decisionmaking process.

To be sure, Obama’s been better than Bush on Guantanamo Bay, torture, the Fourth Amendment, and medical marijuana raids.  Then again, “better than Bush” is a low bar on these issues, especially when you consider that these are issues that by and large played a key role in his getting the nomination and eventually winning office.  What has frustrated me far more about the Obama Administration, however, has been its performance on civil liberties issues that are less important to the liberal base of the Democratic Party.  This performance suggests that the Obama Administration’s interest in Constitutional liberties goes little further than is needed to keep the liberal base happy. 

What are these small incidents?  In no particular order: [Read more →]

Here’s an interesting back-and-forth on surveillance reform in the Los Angeles Times. I found the arguments against modifying the PATRIOT Act frustrating, not least because they don’t seem all that responsive to the civil libertarian case for additional safeguards. But this throwaway line from the Heritage Foundation analyst defending the PATRIOT Act really got my goat (emphasis mine):

If investigators are sloppy, by all means, use the legal powers already in place as a remedy. There are adequate safeguards on the books to stop this, and they should be used. But the Patriot Act is not an example of abuse; it is an example of success. The lack of terrorist attacks since 9/11 and the absence of actual abuses stand as mute but powerful witnesses to the law’s effectiveness.

Now, the first part of this argument – that very few PATRIOT-related abuses have actually occurred – just seems factually wrong. Moreover, specific instances of abuse were repeatedly pointed out by her pro-reform interlocutor (Julian Sanchez), who also notes that the nature of counter-terrorism surveillance makes it less likely that abuses are reported. But to be fair, I’m no surveillance expert, so maybe these incidents are so trivial or so rare that they don’t represent any serious threat to civil liberties.

The notion that the absence of terrorist attacks since 9/11 counts as prima facie evidence that our surveillance infrastructure works, however, is as an argument that deserves to be permanently retired.

We don’t know why we haven’t been attacked since 9/11. Maybe it’s because Al-Qaeda fears another retaliatory military strike. Maybe we’ve disrupted potential terrorist attacks overseas. Maybe our national security establishment has systematically over-estimated the scope of the terrorist threat. Maybe the vast majority of nascent terror operations in the United States are carried out by bungling incompetents.

I don’t know if these hypotheses are correct, but they’re at least as plausible as the idea that our all-knowing, incredibly competent domestic security apparatus has foiled terrorist plot after terrorist plot since 9/11. And I think it’s telling that PATRIOT Act defenders have to rely on a made-up chain of causation to justify ignoring civil libertarian concerns.

So the big news in Canada right now (having temporarily avoided another election) is that the Canadian Federal Justice Ministry is considering, “a new law that would allow police to conduct random breathalyzer tests on drivers, regardless of whether they suspect motorists have been drinking.”

Groups like MADD are, not surprisingly, in favour of the idea (MADD brief on RBT here). MADD Chief Executive Andrew Murie is selling the idea thusly (same link),

Murie said its biggest selling point is that it improves road safety, with drunk driving fatalities dropping 36 per cent in Australia after legislation was introduced, and 23 per cent in Ireland when it made the change.

“In the European Union, they demand that their countries, as part of membership for road safety, have sophisticated random breath testing because of the difference it’s made in lives saved,” he told CBC News.

Murie said the change would allow police at roadblocks to conduct about three times as many breathalyzer tests because they would not need to spend time determining whether there is “reasonable” suspicion a driver has been drinking.

And, indeed, a report (possibly the same mentioned by Murie, there is no link provided) on random breathalyzer testing in Ireland demonstrates that the number of road deaths has decreased,
[Read more →]