Tuesday, November 22, 2005


My friend, Scott, posts a very well reasoned and cogent argument against lying, war, and the war crimes committed by George W. Bush and his administration. His arguments are persuasive. The only thing that I'd add to them are that I believe that the U.S. should participate in the World Court War Crimes Tribunal. The U.S. is one of the nations in the world that argues that the rule of law, not the whims of dictators and corrupt justices, should govern men. It's a good speech, if only we'd back it up with actions. If we were participating in the World Court War Crimes Tribunal, then we'd have a seat at the table when these laws are established. Any concerns that we might have regarding the laws and how they are applied could be addressed in a democratic fashion within the court. By doing so, we'd be better able to protect our citizens who no doubt one day will come in front of the court. Not being there only does greater disservice to future generations, but that is par for the course for this administration and it's Republican minions.

GM is laying off 10% of their work force (17% of their domestic work force). Now those people are going to be added to the unemployed and/or pension rolls (which GM will no doubt try to turn over to the U.S. government at some point, complaining that because the law allowed them to underfund the pensions and instead pay their executives and shareholders - you know, the people that Republicans are now so anxious to provide tax cuts for - GM can no longer afford the pensions without grave consequences for their executives and shareholders, therefore the middle class should pay for their own pensions through taxes - see the circular argument?). This sounds more like the 80s each day. The economy numbers show more people employed, but wages are stagnant (except for the upper classes) and fewer people seem to be benefiting beyond those on Wall Street. Is this really the sort of economy Americans want or would they prefer the one (now so derided by Republicans) from the 90s when more people benefited, there was less unemployment, and the deficit was shrinking rather than growing?

Speaking of the 80s, Scott mentions the Alito nomination and abortion. My early days of political cognizance did not focus a great deal on the right to privacy. During the late 70s when it came to women's rights, I was focused on the equal rights amendment. I remember my mother and I arguing over the amendment. She argued against it based on the old "do we want women going to war?" issue. She was horrified when I told her it made sense to me. If men could join the armed forces and go to war, then women should be offered the same opportunities. To this day, I still hold firm to that belief.

Some time during the 80s, however, the issue of abortion became more dominant in our discussion of women's rights. Perhaps it was the death of the ERA that spurred this development, but abortion didn't really appear on my radar screen in a big way until the 1980s. Since then it has dominated politics of both parties. A great deal of time, energy, and money has been spent on a question that, if polled, the American people largely agree upon - and have agreed upon since the 70s. Polls have consistently shown that somewhere between 67 and 73% of Americans support a right to privacy, which is to say that they support a woman's right to choose, which is to say that it's no one else's business what she decided in privacy with her doctor and, possibly, her mate.

So, why do we continue to argue the issue? Oh, sure, it's easy to point to the right wing extremists who over the years have bombed clinics, places death threats on doctors, created havoc outside of clinics, and so on. It's also easy to blame the political allies of these extremists. Let there be no confusion of my position: these people are a threat to the civil rights of women. However, let's be clear: if the Democrats didn't gain something from this relationship, then it would have been resolved long ago. From abortion the Democratic party also gains a rallying point, a funding point, and necessary drama to keep their moribund party active. They benefit from moderate Republicans having lost control of their party to the extremists due to their own lack of diligence (fueled by a thirst for power over ethics). I put to you, dear reader, that if the Democratic party really wanted to have done so, they could have settled this issue long ago by proposing an amendment to a right to privacy. The Democratic party didn't do so because it would have eliminated a hot button issue that raises funds, rallies troops, and distinguishes itself from the Republican Party. In other words, neither party is truly interested in seeing this issue go away.

What other issue can you think of where the American public is in 70% agreement? How much of a slam dunk would this have been or could be? Why not end the debate so we can move forward with more constructive discussions such as the economy, health care, national security?

Ooops, I shouldn't have mentioned that last one. You see, an amendment to the Constitution regarding privacy might have very real impact on national security. In the 80s or 90s such an amendment would have passed without much thought to national security, but in the new millennium, national security would be used as a tactic of Republicans to defeat the amendment. Indeed, it is exactly the Republican and Democratic party's convergence of using the state apparatus (F.B.I., C.I.A., Fatherland Security) to violate it's citizen's rights that is the reason such an amendment is needed now more than ever.

The so-called Patriot Act was passed overwhelmingly by Democrats and Republicans just 4 years ago. At the time opponents were assured that abuses would not be committed. Checks and balances were in place to prevent such abuses, we were told. Old tales from the Johnson/Nixon era of law enforcement investigations of innocent citizens - investigations that were similar to the way the KGB filed reports on it's citizens - would never be repeated, according to supporters of the Patriot Act. And, yet, it is becoming clearer that such reassurances were not true.

The so-called Patriot Act has emboldened law enforcement agencies to invade the privacy of citizens in exactly the ways we were told it would not. The desire to prevent terrorism has driven some officers to violate the privacy of citizens of this country (who are their employers, in fact). Cases are mounting and they are not terribly limited. Because the so-called Patriot Act provides a great deal of privacy to government agencies, ordinary citizens do not often hear about the abuses. Yet some diligent organizations are fighting in courts to expose those abuses and some information is leaking out.

Would passage of a privacy amendment prevent law enforcement from preventing a terrorist attack? I'd argue not likely. In over 200 years, this country has experienced only 1 major terrorist attack from a foreign source. Most of the terrorist attacks in this country have been caused by it's own citizens. Indeed, as reports in the media have shown, if the FBI had listened to it's own field agents, the 9-11 attacks might never have happened and that was before any of the provisions of the Patriot Act were in place. If portions of the Patriot Act have prevented terrorist attacks since then, I'd expect the administration to be touting their successes. Instead, I read of cases like the one in Detroit where we find out that the administration, according to the courts, had wrongfully prosecuted a group of people. Or the case in Portland where one citizen was wrongfully accused of participating in the terrorist bombings in Spain. Or the case in Tacoma where a military chaplain was accused of terrorism while attending prisoners in Guantanamo.

Sure, supporters of the act will tout other cases, but can they prove that it was the Patriot Act specifically that was the make or break of those cases? Not likely because they cannot tell us how it was used. Government has more privacy rights than the citizens that provide it legitimacy.

A privacy amendment to the Constitution, therefore, would assist in preventing unnecessary government intrusions. It would provide yet another check and balance against those who would abuse law enforcement privileges to inflict state terror on it's citizens (and I'm not just referring to the national government here as studies have shown an increasing desire of local prosecutors to apply portions of the so-called Patriot Act to crimes in their jurisdiction - crimes not originally intended to be covered by the Act - where are the great defenders of "original intent" when these issues arise?). It would also end the abortion debate (at least, legally and politically) thereby freeing up gridlock and talking points for both political parties. Such an amendment would also have implications regarding sodomy laws throughout the country, ending yet another stagnating, bickering point for the political parties. It would most likely have effects in other areas of law enforcement such as illegal searches of cars/homes/boats without due cause (a favorite trick used in the so-called drug war). Plus, a properly written privacy amendment would cover the personal information of people when dealing on the Internet, with financial institutions, and other agencies that might use that information (as it stands today, such information can be gathered with or without the knowledge of the individuals involved).

The time has come for such an amendment to the Constitution. But do not expect political parties to deliver this. They would rather have easy fund raising issues. Political parties would rather have stagnation over abortion rather than discourse and creative solutions on issues such as health care, retirement, housing, economics, and/or the poor. Rather, a privacy amendment needs to first be a grass roots effort. It needs to well up in such numbers that it forces politicians to take notice and embrace it. No politician will embrace it on it's own as it is the type of thing politicians fear.

Alito and his scourge often argue that Roe v. Wade was wrongfully decided. The argument goes that there is no constitutional right to privacy (which would negate the Griswold decision as well which provided a right to privacy for couples seeking to purchase contraception, but they don't like to bring that up because to do so would expose their anti-sexuality agenda) and therefore the Roe decision was an issue of judicial activism enshrining in the Constitution something that it does not explicitly endorse. I'd wager that most Americans, however, endorse that concept. We need a privacy amendment to end this discussion and make the nominations such as Alito about larger issues such as state rights, federalism, and corporate rights versus citizen's rights. Alito is a pro-corporate rights, pro-federal government rights over citizen's rights justice nomination. To whittle the discussion down to a tired abortion debate - one that most people think should be settled - does a disservice to everyone.

Update: Bruce Schneier has a good column today on security, the Patriot Act, and the importance of transparency. Choice quote:

These differences illustrate four principles that should guide our use of personal information by the police. The first is oversight: In order to obtain personal information, the police should be required to show probable cause, and convince a judge to issue a warrant for the specific information needed. Second, minimization: The police should only get the specific information they need, and not any more. Nor should they be allowed to collect large blocks of information in order to go on "fishing expeditions," looking for suspicious behavior. The third is transparency: The public should know, if not immediately then eventually, what information the police are getting and how it is being used. And fourth, destruction. Any data the police obtains should be destroyed immediately after its court-authorized purpose is achieved. The police should not be able to hold on to it, just in case it might become useful at some future date.

This isn't about our ability to combat terrorism; it's about police power. Traditional law already gives police enormous power to peer into the personal lives of people, to use new crime-fighting technologies, and to correlate that information. But unfettered police power quickly resembles a police state, and checks on that power make us all safer.

As more of our lives become digital, we leave an ever-widening audit trail in our wake. This information has enormous social value -- not just for national security and law enforcement, but for purposes as mundane as using cell-phone data to track road congestion, and as important as using medical data to track the spread of diseases. Our challenge is to make this information available when and where it needs to be, but also to protect the principles of privacy and liberty our country is built on.

1 comment:

Scott said...

A long used simile (or is corollary more apt?) of mine involves our apparent national lack of integrity and the world court.

First change the subject. "What do you think about that story of the fellow who quadrupled his insurance a few months before his business burned down? Was it really reasonable the police made him the prime suspect from the start, and claimed it was premeditated?"

Most anyone will argue it is reasonable. So then I ask my conservative friend, "What do you think about that story of the fellow withdrew from the world court and shortly afterwards is accused of condoning war crimes like torture? Was it really reasonable the moderates saw him as the prime suspect from the start, and claimed it was premeditated?"