No debate in Congress. No rules published in The Federal Register. Not a whisper of any opposition from the intelligence agencies, DHS, or any domestic law enforcement departments. They simply went ahead and did it:
The Bush administration has approved a plan to expand domestic access to some of the most powerful tools of 21st-century spycraft, giving law enforcement officials and others the ability to view data obtained from satellite and aircraft sensors that can see through cloud cover and even penetrate buildings and underground bunkers.
A program approved by the Office of the Director of National Intelligence and the Department of Homeland Security will allow broader domestic use of secret overhead imagery beginning as early as this fall, with the expectation that state and local law enforcement officials will eventually be able to tap into technology once largely restricted to foreign surveillance.
Administration officials say the program will give domestic security and emergency preparedness agencies new capabilities in dealing with a range of threats, from illegal immigration and terrorism to hurricanes and forest fires.
I guess that part in the Constitution which says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” is just too old fashioned for some people. Not when we have all these marvelous little toys in space that can see through walls, eavesdrop on our conversations, and take pictures of our backyard barbecues.
Those of you familiar with this space know that I am far from being a civil liberties absolutist. I have recognized in the past that programs like the Terrorist Surveillance Program – if it is properly administered – is a distasteful but necessary price to pay to fight al-Qaeda and its offshoots in this country. I have supported these programs because for the most part, a citizen’s right to privacy is maintained by the fact that the overwhelming amount of information gathered in these digital dragnets is never seen by human eyes. It is digested by supercomputers, examined by algorithmic computer programs for relevancy, and then discarded back into the ether from which it came.
But this is different. This is real time imagery scanned by snoops looking for illegal activity. At the present time, they anticipate using it against (they say) drug smugglers and terrorists. But make no mistake, gentle readers. We are in true slippery slope territory here. Ed Morrissey spells out the consequences:
While some conservatives undoubtedly would argue that they see nothing wrong with giving law-enforcement agencies access to existing technology, others will rightly object on two grounds. First, the obvious application for the sneak-peek technology would be to avoid search warrants. If probable cause existed for a warrant, law enforcement wouldn’t need the satellite technology; they’d simply enter. That’s the way it’s supposed to work, and has worked well for over 200 years. Civil liberty is based in part on judicial oversight of law enforcement encroachment on private property, which the sneak-peek technology would obliterate.
Second and perhaps more importantly, American legal tradition has separated military and foreign-intel collection from domestic law enforcement, and for good reasons. The Posse Comitatus Act forbids the military (except the Coast Guard, for certain purposes) from acting in a law-enforcement role, except under emergencies specifically requiring martial law. This law keeps the federal government from usurping power from local and state authorities. Since these satellites were launched with strictly military and foreign-intel missions in mind, using them as tools for law enforcement may not entirely cross the PCA, but it gets too close for comfort.
“Some conservatives” who might support this program aren’t very conservative at all. Militarizing law enforcement, however well intentioned, smacks of fascism. Mr. Morrissey is too much the Christian gentleman to say so but I challenge any conservative to defend this anti-democratic, anti-privacy program in terms of classic conservative dogma. It cannot be done. And the reason is quite simple; conservatives invented the right to privacy.
It is a shame that the debate over privacy rights has been tied to the debate over abortion and gay rights. Prior to Roe V. Wade, Justice Harlan, a conservative through and through, foresaw a time when an implied right to privacy would have to be accepted:
Justice Harlan took a view of privacy that rested on a general and expansive reading of American traditions. He did not expect people claiming rights to point to some specific tradition or some specific body of law. He understood that the questions were more difficult than that. The right of privacy now, if anything, is more important, indeed much more important than it was when Justice Harlan wrote, “With changes in reproductive technology and end of life technologies that make these questions all the more acute.”
The question whether we will have a Justice Harlan-like approach to the right of privacy or a skeptical approach to the right of privacy that questions whether it even exists and evinces a desire to confine it as narrowly as possible, that question it seems to me is very much on the table, and will be a question that will be with us for the next generation.
The consequences of traditional conservatives allowing social conservatives to hijack the debate over privacy can now be seen in the context that this implied right to be safe and secure in our private spaces is under attack largely because the social cons have rejected the entire argument in favor of privacy in order to fight abortion, gay marriage, and other social concerns. This is more than “throwing the baby out with the bathwater.” It simply cannot be defended on the basis that we can trade off one constitutional right in order to support another.
My respect for those who advocate a right to life – at least those who believe such a right exists from the moment of conception – has always been tempered by their advocacy to overturn Roe V. Wade. This is because I recognize that the privacy rights granted by Roe have now been expanded far beyond that envisioned by Justice Blackmun when he penned the decision in 1973. Roe has become a cornerstone of privacy law. Remove it, and the entire edifice of protections against unreasonable invasions of our privacy by government, our employers, our next door neighbors, or even total strangers would be affected. It is decidedly un-conservative to deny that basic fact – regardless of whether you believe abortion should be legal or gays prevented from marrying.
I have no desire to start a war with social conservatives over this issue. After all, there are some parts of the social con agenda I can support – end of life issues and their standing alone against the coarsening of our culture are two areas we can agree on. But my friends, without privacy, we have no true liberty. Destroy the right of privacy and you invite all sorts of mischief from those who would use modern technology like satellites as well as stuff you can buy at any Radio Shack to intrude in places they have no business going in a free society.
And I also want to make it clear that I do not believe in the “one more step on the road to dictatorship” meme being advanced by the left. Their paranoia regarding the Bush Administration disqualifies them from engaging in any kind of rational debate on the subject. The Bush Administration has sought from the beginning to redefine executive power more robustly than their predecessors, seeing (many believe quite rightly) that some powers of the executive had been appropriated or weakened by Congress since Watergate. The courts have always adjudicated these inter-branch arguments and I trust such will always be the case. But to posit the notion that we are slipping into some kind of anti-democratic nightmare is just plain silly.
Withdrawing this dangerous proposal will not affect our ability to fight terrorism in any significant way. I would hope Congress will take this issue in hand quickly and prevent this stupid idea from advancing very far.