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.
8:06 am
“Some conservatives†who might support this program aren’t very conservative at all. ”
I’ve been waiting since 9/11 for real conservatives to stand up to the fear mongers and oppose this kind of stuff.
8:10 am
I have difficulty understanding the outcry of those who disagree with surviellance techniques.
WHAT DO YOU HAVE TO HIDE??
If you are innocent, then why the concern?
Like your article states 99% of all information gathered is screened by a computer. Only if one of the many preset indicators are triggered does any further review/action begin.
AGAIN, WHAT DO YOU HAVE TO HIDE??
8:38 am
@Rick:
“But make no mistake, gentle readers. We are in true slippery slope territory here.”
“Militarizing law enforcement, however well intentioned, smacks of fascism.”
“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.”
??? You think this action is a slippery slope that smacks of facism, but scoff at those that believe this Administration is one more step (like a slippery slope) closer to Uncinstitutional governance?
Are you drawing a distinction betwseen Facism and Dictatorship, in that it IS looking more and more like Facism, but doesn’t meet the textbook definition of Dictatorship? If that’s your position, then I respectfully disagree. Facism would be military rule, and we’re not approaching that with this rule—the military is not assuming power, but sharing its resources with the civilian government. It IS, however, looking alot like a Dictatorship, wherein the single/central entity runs the power and control of the government.
If the hangup is literally on the word “Dictatorship” as opposed to “Facism”, let me suggest that people who throw those words around often assume that they are interchangeable. Would that change your “Lefties are nuts” position?
While I agree with your position, the obligatory spitting on Lefties seems out of place.
8:43 am
“Smacks of Fascism” is quite a bit different than say it is fascism.
And the spitting at lefties is justified considering there is no having a rational conversation with them about this issue. I’ve given up.
And the slippery slope argument doesn’t mean that anything bad will happen. It’s just easier for it to happen – a nuance that seems to escape most on the left.
8:56 am
yawn…seen maps.msn.com lately?
they probably already have a 3D, zoomable, high-res picture of your house online.
8:57 am
I should add…not that I’m for either of these (MSN hosting pics of your or my house or the guv doing the same).
9:05 am
@Rick:
“’Smacks of Fascism’ is quite a bit different than say it is fascism.”
And “on the road to Dictatorship” is different than “Dictatorship”. I’m confused by the difference between “smacks of Facism” and “on the road to Dicataorship.” In a pure literal discussion, there are differences, but it seems to me that you and the Lefties are using the phrases as metaphors for an unacceptably powerful unitary government. You aren’t alleging that the military is attempting to formulate a coup. W isn’t in the military, so more power to him and his doesn’t lead to Facism in the dictionary sense.
“And the slippery slope argument doesn’t mean that anything bad will happen. It’s just easier for it to happen – a nuance that seems to escape most on the left.”
. . . thats a thin hair to split, sir. The fact that I’m intoxicated and driving my car the wrong way on the highweay doesn’t mean a bad result, just a more-likely bad result, so its not as concerning?
Would it be better to wait until “smacks of Facism” becomes “Facism,” then express your concerns? I assumed from your post the whole point of the concern was to halt the slipping towards Facism before it happens.
I understand us Lefties aren’t as open to ideas as Conservatives, since we can’t go 5 minutes without hitting the bong and all, but it really sounds like you came to the same paranoid conclusion, but reject your intellectual neighbors because you don’t like the color of their lapel pin. Tough head-of-a-pin to balance on.
9:19 am
Domestic Use of Spy Satellites To Widen…
The Bush administration has approved a plan to expand domestic access to some of the most powerful …
9:19 am
@ Mike:
“WHAT DO YOU HAVE TO HIDE?”
You’re missing the point entierly. The privacy rights implied by the Constitution (1st, 4th, 5th Amendments) aren’t to help you hide something from the government, but to keep the government from abusing you.
If you didn’t commit a crime, why not talk to the police without an attorney? What is the Defendant hiding? Nothing, usually, but the Judiciary recognizes that Government can abuse citizens unless they are protected. If you’re not hiding anything, why not allow cops to walk into your house whenever they want and rifle through your property? Hell, why not have a microchip GPS implanted, so they know where you are? You’re not going anywhere suspicios, are you?
The last example is over-the-top, but I use it to make a point. The “let us do what we want or you’re suspicious” argument assumes that the Government can be trusted to only act from the purest of motives. Our Founding Fathers didn’t believe that—they made a point to keeep too much power out of any branch of the Government specifically because power corrupts.
Whats to fear? Let me speculate. W and crew would try to use the data to help their party win elections—don’t vote for Democrat X, because he got piss drunk at his backyard barbeque last week. You don’t want a drunk in charge, do you? Far fetched? To some, but let me note that the “political landscape briefings” Rove loved were in the same vein.
Nothing more purely Conservative than giving up your rights to the government—thats what Reagan would want.
9:23 am
You wouldn’t know what a conservative is if one came up and bit you in the ass. Reagan never said for people to give up their rights to government. That’s absurd on its face and shows an incredible ignorance on your part.
No conservative has ever said such a thing. No one. Ever. Either educate yourself or stop commenting here. I’m sick to death of your stupidities.
9:45 am
@Rick:
You’re right—Reagan never said that. In fact, he stood for the exact opposite—a point I was tring to make that apparently didn’t come through. As the previous poster I assume is a Conservative, and seems to be advocating unfetterd Governmental intrusion into private citizen’s lives, I was trying to illustrate that the two postions are traditionally incompatable.
If my sarcasm was too subtle, my apologies. Given how obvious it appeared to me that such a statement was the opposite of Conservative ethos, I thought it was pretty clear.
10:18 am
Rick Said: “But to posit the notion that we are slipping into some kind of anti-democratic nightmare is just plain silly.”
Yeah, not only would it be silly to posit the notion, but it would be unpatriotic as well. It might even prove that you have something to hide. If people would just accept that the administration has their best interests in mind, the whole process would go a lot smoother.
10:20 am
I have difficulty understanding the outcry of those who disagree with surviellance techniques.
WHAT DO YOU HAVE TO HIDE??
LOL. Perhaps you’re trolling but it’s hard to tell.
My experience is that most people have something to hide, something they don’t want local politicians or police to hold as leverage against them. Information is power. (Power corrupts. etc.
10:43 am
I think that social conservatives take a very different approach to authority and government then secular conservatives. Ask anyone who considers themselves deeply religious and republican and there is a good chance you will hear how America is a Christian nation that has lost its way because of declining morals. For them there is no issue with giving government vast new powers of watching law abiding citizens; what do you have to hide? they would ask?. Commenter number two is probably one of those folks. It is a shame because I always thought a good conservative ‘Loved their country but feared their government.
1:49 pm
To me the PCA argument is bogus.
Each of the law enforcement agencies could purchase the same thing through commercial satellite photo vendors with no impact.
If a police traffic chopper flies over a home and sees pot growing in the back yard they can act on it. This has already hit the Supreme Court and been upheld.
Heck then can even use infrared to detect grow lights in a garage indicating potential plant growth.
I would rather have them have access to high res imaging for a Katrina recovery situation than low scan blurry stuff.
It’s not like cops are getting a terminal in their watch room for each satellite pass, each request will be vetted through an application process.
Also this allows data sharing between agencies for example to have a port imaged to look for weaknesses that need to be compensated for.
So we can scientifically look at volcano activity, but can’t do good looks at beach erosion or other things.
But those same cities could legally contract an aerial photo service to blanket their city.
Please don’t go jumping off bridges just because the guy next to you might.
1:59 pm
Heck where I live the county does a full aerial survey of photos and videos about every five years and the building and zoning department always catches about 60 to 70 , and once as many as 300 buildings built in back ends of the property that were built without permits and weren’t on the tax rolls for the additional structures.
This year they caught about 15 in ground pools that neither the homeowner or the installer had gone through the permit process for.
2:41 pm
Guys, this subject is always discussed in a ridiculously overheated fashion. Those who are uberlibertarian privacy nuts (like Ron Paul), that is, those who seriously believe that, to misquote Judge Posner’s book title, the Constitution actually IS a suicide pact, already have eight million things to complain about. Even though they never seem to worry that Amazon.co snoops into their personal affairs a lot more than any law enforcement agency.
For the rest of us, we see two things: these issues are meaningless fluff unless you go back a few years and do something that probably needs to be done, that is, drastically change or repeal RICO. That’s the statute that gave government and law enforcement the ticket to your pockets, bank account, and every room in your house.
Meanwhile, the SCOTUS dealt with most of this already in Kyllo: http://findarticles.com/p/articles/mi_m2194/is_10_70/ai_80787342. Go read that decision about the use of IR scanners to gather information to support a 4th Amd probable cause warrant, and fit this latest publicity splash into the rules set forth in Kyllo. And calm down! (says Posner, no statist he)
3:53 pm
Excuse me all but why do you keep talking about law enforcement already doing this? Are you seriously trying to suggest that what is being proposed is no worse than the crude infra-red technology used to find pot homes? Or the cameras from some aerial survey?
Do you understand the unbelievable sophistication of these tools used by the National Recon Office? What these satellites are capable of? The technology being used is 10 years ahead of anything on the market and available to commercial enterprises. And that’s a guesstimate.
The potential for violating privacy is just too great. The program makes us less secure in our homes and property and should be abandoned.
9:56 am
Harlan is a relatively unknown jurisprudential treasure. When I was in college, professors adored J. Douglas. As I plowed through Supreme Court decisions, I realized that Harlan was an incisive, brilliant thinker and a clear writer- a justice who worked within the constraints of the constitution. It’s nice to hear you singing his praises, Rick- well deserved indeed.