Most of us are not Patrick Henry and would be willing to lose a great deal of freedom in order to save our lives. This is especially true when the freedom in question is that of foreigners with funny names, but it is true of our own freedom as well. It’s not even necessarily deplorable. Giving up a certain amount of freedom in exchange for the safety and comfort of civilized society is what government is all about, according to guys like Hobbes and Locke, who influenced the Founding Fathers. And that’s good government. Many people live under bad governments that take away more freedom than necessary and choose not to become heroes. That is not a contemptible choice, especially if we’re talking France, or maybe even China, and not Stalin’s Russia or Hitler’s Germany. The notion that freedom is indivisible—if you lose a little, you have lost it all; if one person is deprived of liberty, then we all are—is sweet, and useful for indoctrinating children. But it just isn’t true.
The current debate about government wiretapping of U.S. citizens inside the United States as part of the war on terrorism, like the debate before it about the torture of terror suspects, and the debate before that one about U.S. government prison camps at Guantanamo and in Eastern Europe, are all framed as arguments about the divisibility of freedom. They are framed that way by the good guys—meaning, of course, the side I agree with, which is the side of the civil libertarians who oppose these measures. That is part of why the good guys are losing. The arguments all seem to pit hard practicality on one side against sentiment, if not empty sentimentality, on the other. There are the folks who are fighting a war to protect us from a terrible enemy, and there are the folks getting in their way with a lot of fruity abstractions. You can note all you want the irony of the government trampling American values in the name of protecting them (yes, yes, like destroying that village in Vietnam in order to save it). The hard men and hard woman who are prosecuting this war for the Bush administration can turn that point, rather effectively, on its head. If the cost of losing the war and the cost of winning it are both measured in the same currency—American values, especially freedom—then giving up some freedom in order to avoid losing all of it is obviously the right thing to do.
Arguing for abstractions while the other side argues for practicality is, to some extent, just a burden that civil libertarians—maybe even liberals in general—will always have to bear. In the old days, liberals at least had the luxury of the easy, tempting argument in the economic sphere—”here is some money from the government”—while conservatives were stuck with long-term abstractions like fiscal responsibility. Now conservatives promise tax cuts starting yesterday, and liberals are left defending government spending (which conservatives deplore in general and ignore in the particular) and fiscal responsibility as well.
The good guys need to frame their argument in ways that don’t require people to be heroes—to give up something practical and immediate like safety from terrorism in exchange for an abstraction like liberty, especially the liberty of someone else (like a young Arab swept off the streets of Baghdad and locked up in a secret prison). This argument is easy to sketch out, no doubt harder to make in detail. Fortunately, sketching out is all that is expected of a newspaper column.
The argument starts with the traditional, and still powerful, slippery slope: Today it’s him, tomorrow it’s you; or, today it’s your international phone conversations, tomorrow it’s your desk drawers. The Bush administration is helping to prevent slippery-slope arguments from seeming paranoid by slipping and sliding before our very eyes. We gave him the thuggishly entitled Patriot Act, and now he claims constitutional authority to ignore the safeguards in it. As the ACLU points out in a current ad campaign: What was the point of that whole debate if the administration was going to disregard the result?
And the slippery slope extends beyond civil liberties, which not everyone fetishizes, to the rule of law generally, which is more popular. That Congressional Research Service report revealed last week is a meticulous and deadpan analysis of the administration’s express and implied reasoning in claiming a right to wiretap conversations at will. No legal restriction on presidential power of any sort could survive the administration’s logic, which skips with ease over statutes and the Constitution itself.
Robert Bork, who is admired and reviled as the king of stinting literalism in constitutional interpretation, always uses wiretapping as his one great example of legitimate reasoning by analogy. The authors of the document didn’t know about wiretapping, but if they did, they would regard it as a “search and seizure” just like a police raid, and therefore restricted by the Fourth Amendment. The administration doesn’t deny this directly, but its logic leaves citizens little or no protection against government wiretapping as a practical matter.
The Fourth Amendment is typical of laws protecting civil liberties in that it doesn’t forbid the government to invade people’s privacy or lock them up or take their property. Rather, it requires the government to be “reasonable” and to explain its reasons to someone else. In short, it requires a reality test. It recognizes that even freedom exists in a world of trade-offs. But it does not trust the government in power necessarily to make those trade-offs correctly.
This is the second answer of the soft-hearts to the hard-heads: We’re not as otherworldly as you think. We do recognize that there is a trade-off between the values we celebrate and the practical demands of protecting those values. We just need a reality test. Is the enemy in the war on terrorism really worse, justifying greater violations of civil liberties and human rights, than the enemy in World War II?
Here, once again, the Bush administration helps to make the softies’ case. They could have jumped through the required hoops and be wiretapping away about five minutes later. Or if they didn’t like the way some court was interpreting the law, they could have gotten a law tailor-made from Congress just the way they liked. (“I’ll take it medium rare, with cuffs but no pleats, and hold the right to a jury trial.”) But that was too much trouble.