How Far is Too Far?

Matt Welch over at ReasonOnline has a rather thought-provoking quiz asking pro-war Libertarians the question: “How far are you willing to go to win the War on Terror?” Being a pro-war Libertarian, I thought these questions deserved some thoughtful answers. Although I whole heartily support the war on terrorism (which includes the war in Iraq), I do have my own concerns about the future of our civil liberties. I do not believe that every action the government takes in the name of ‘the war on terror’ is automatically legitimate. The Anti-war folks actually have legitimate arguments against some of the Bush Administration’s policies on occasion. The problem is the Left cries wolf about the Bush Administration so often it is difficult to determine when they are actually telling the truth about civil liberties violations; my first instinct is to simply not believe them.

By contrast, many pro-war and those on the political Right seem all too eager to give the Bush Administration a pass when many of these same people would otherwise be outraged at the expansion of government and erosion of liberties in other circumstances. If Bill or Hillary Clinton were president, how many of us would shrug our shoulders at the same policies and merely write them off as ‘part of the war on terror’? If we are intellectually honest, many of us would have problems. The question should not be ‘is my team in charge?’ but rather ‘is it the right thing to do’?

Many of Welch’s questions are very difficult; there are many grey areas. Some of my answers I am not 100% committed to; some of my intelligent readers could persuade me to reconsider some of my answers with a strong enough argument. I hope some of you will think about your own answers, respond to this post, and further this discussion.

(1) Should the National Security Agency or CIA have the ability to monitor domestic phone calls or e-mails without obtaining judicial approval?

My answer to this question is an unequivocal ‘no’. The key word in this question in my mind is ‘domestic.’ I have no problem with the NSA or the CIA collecting intelligence from foreigners. The government’s primary function is to protect us from foreign threats. Non-citizens do not enjoy the same rights as American citizens. Foreigners do not have the same interest in keeping America safe; in fact many would like to see the terrorists succeed. Obviously, I hope the CIA and NSA targets only individuals who seem to be a legitimate threat (like those on the terrorist watch list and those who have contact with those on said list). If one of the parties being monitored is of a foreign origin and another happens to be an American, I would still consider this to be a proper use of government power even if the American is implicated.

(2) Should the government have the ability to hold an American citizen without charge, indefinitely, without access to a lawyer, if he is believed to be part of a terrorist cell?

Absolutely not! We cannot throw away due process, one of the foundations of the U.S. Constitution, when it is convenient.

(3) Can you imagine a situation in which the government would be justified in waterboarding an American citizen?

Yes.

I must confess that I did not know what the term ‘waterboarding’ meant when I first read the question (it has nothing to do with surfing). According to MSNBC.com it means “dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations.”

I don’t think this tactic should be one frequently used but I could think of at least a situation where expediency might require such tactics. If a suspected American terrorist was believed to have information that could prevent another 9/11 or was believed to know the location of a dirty or nuclear bomb in an American city or against coalition troops, such tactics should be used (provided these tactics are even effective to begin with). The threat would have to be eminent and all other options would have to be exhausted.

(4) Are there American journalists who should be investigated for possible treason? Should Sedition laws be re-introduced?

I cannot think of any journalist in-particular that should be investigated. If a journalist knowingly reported something classified that would threaten national security, that journalist should be investigated and subject to any criminal laws that apply. Treason is a very difficult standard to prove. Article III Section 3 of the U.S. Constitution has a very specific definition for treason:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Sedition laws should not be re-introduced. Dictionary.com has the following definitions for ‘sedition’.

1. Conduct or language inciting rebellion against the authority of a state.
2. Insurrection; rebellion.

Could some of my ‘language’ on this blog be considered seditious by the first definition? Quite possibly. I write about fighting against tyranny; sometimes our own government acts as a tyrant. The Declaration of Independence could also be considered seditious! Take this passage for example:

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security...

As to the second definition, I do not think there is a need to enact an anti-sedition laws to protect against ‘insurrection’ or ‘rebellion.’

To summarize: the first part of the question as a hypothetical yes, to the second part of the question not just 'no' but 'hell no'.

(5) Should the CIA be able to legally assassinate people in countries with which the U.S. is not at war?

If Bin Laden were to be found hiding in France should our guys be able to take him out? Are you kidding me? Absolutely! If Welch’s problem is with littering in a foreign country then our guys can pick up the trash after the job is done.

(6) Should anti-terrorism cops be given every single law-enforcement tool available in non-terrorist cases?

No. If any new tools are needed to fight the war on terror, the tools used should be only used for that purpose. Those who would like to use these tools in other areas can go through the normal legislative process.

(7) Should law enforcement be able to seize the property of a suspected (though not charged) American terrorist, and then sell it?

No. Even suspected terrorists should be considered innocent until proven guilty in a court of law. I could understand law enforcement having the ability to confiscate property until an individual has had his or her day in court but I know of no reason that government would be justified in selling the property until the suspect is found guilty. I’m not certain that government should sell the property even if the suspect is proven guilty. Why not allow the property to be given to the suspect’s next of kin or divided among family members?

(8) Should the U.S. military be tasked with enforcing domestic crime?

No. An argument could be made that the military could serve a law enforcement role in the event that martial law is declared but not in normal circumstances. The idea of martial law is something that also concerns me.

(9) Should there be a national I.D. card, and should it be made available to law enforcement on demand?

No, but I’m afraid that we already have such a card: the Social Security Card.

(10) Should a higher percentage of national security-related activities and documents be made classified, and kept from the eyes of the Congress, the courts, and the public?”

Certain activities should not be known to the public but I think that Congress and the courts should have oversight. I would also say that anyone who holds national security clearances should be prosecuted if he or she leaks the information. I agree that the government should be as transparent as possible, but in matters of national security, the people’s right to know does not mean that the people have to know ‘right now.’ Once the threat no longer exists then I would say that the activities should be declassified. I don’t want to know every strategy my government is using to protect me. If I know, then the enemy probably knows too.