Don't Hurt People and Don't Take Their Stuff: A Libertarian Manifesto

by Matt Kibbe

  In part because of the president’s tendency to say “I didn’t know” in response to any executive branch abuse-of-power scandal, more people are wondering if he is in charge of the executive branch at all. He “generally” knows what the National Security Agency and other intelligence-gathering functions of the federal government are up to, he says. But he didn’t seem to know that the NSA was listening to German chancellor Angela Merkel’s cell phone calls.

  What if the power is now with faceless bureaucrats, not the president? If the president knows the “general” purposes of federal snooping, do you wonder what the extraordinary ones are? Wouldn’t you like to know? Given the extraordinary power of the federal government in the era of Big Data, should we trust faceless, unelected bureaucrats with the extraordinary discretionary power to choose you as their next target?

  Think about the abuses of power big and small, from J. Edgar Hoover, to Richard Nixon, to Lois Lerner. Think about the qualified, and ever-evolving, promises made by Barack Obama. Does the federal government of the United States have the right to snoop on you, tracking your phone calls and reading your emails? Does Washington, D.C., have the power to limit your speech, spy on the press, or suppress the opinions of bloggers? Does the president of the United States have the discretionary authority to assassinate American citizens on American soil without due process, before guilt is determined in a court of law? Don’t you have a right to know?

  The president has continuously claimed, responding to a seemingly endless series of revelations that disprove the previous assurances from the White House and various federal agencies, that lines were not crossed, that our constitutional rights were not breached, that your civil liberties were not violated. I don’t know about you, but I am not reassured. In fact, I’m certain that things are out of control, and that the balance between our essential liberties and the national security apparatus is fundamentally off, in favor of faceless bureaucrats that we hope are doing the right thing with all that power.

  As Americans, our freedoms are broad and our rights are protected under the Constitution. The government’s powers, on the other hand, are supposed to be well defined and strictly limited. But you have to know your rights and vigilantly defend them from the natural tendency of governments to grab power and grow capabilities. Unfortunately, fewer and fewer of us are taught in public school about our guaranteed individual rights. Fewer still take the time to find out and understand the rules for themselves.

  This is a very bad trend, and it’s our bad if we don’t know, or care to know. “Thomas Jefferson often insisted that the ultimate guardians of our rights and liberties are We The People,” says the great civil liberties activist Nat Hentoff. “But when many Americans are largely ignorant of the Constitution, an imperial president—like George W. Bush or Barack Obama—can increasingly invade our privacy; and now, with ObamaCare, ration our health care and—for some—our very lives.”4

  BACKASSWARDS

  Think he’s exaggerating? Consider some of the more extreme views recently expressed by Lindsey Graham of South Carolina. “If I thought censoring the mail was necessary,” he told stunned reporters on June 11, 2013, “I would suggest it, but I don’t think it is.”5 Graham sits on the Senate Judiciary Committee, with its jurisdiction overseeing “civil liberties.” In other words, you could argue, he has a unique responsibility to protect your constitutional rights.

  But he doesn’t seem to be doing a very good job. In an interview on Fox and Friends, Graham defended the NSA’s warrantless surveillance of American civilians, telling the show’s hosts, “I don’t think you’re talking to the terrorists. I know you’re not. I know I’m not. So we don’t have anything to worry about.”6 He went on to tell the astonished hosts that he was “glad” the warrantless surveillance activity was happening in the NSA.

  Guilty until proven innocent? You don’t need to be a constitutional lawyer to know that this is backasswards. Graham’s view, though not all that unique, is a fundamental inversion of the American concept of justice.

  On June 5, 2013, the British newspaper the Guardian broke a story about the NSA collecting phone records from millions of Americans who use Verizon.7 The source of the information was Edward Snowden, a young computer analyst consulting for the NSA. A day later, the Washington Post8 and another Guardian story9 revealed that the surveillance extended to Internet companies as well, enabling the NSA to access emails, photos, videos, and pretty much anything else stored on supposedly secure servers.

  Senators Saxby Chambliss (R-GA) and Dianne Feinstein (D-CA) revealed during a hearing of the Senate Intelligence Committee that this type of surveillance had been going on unnoticed for seven years.10 Feinstein actually defended the program by claiming that the NSA needed access to people’s phone records “in case they became terrorist suspects in the future.”

  The Obama administration jumped right out of the gate with a defense of the NSA, claiming that no personal information or conversational content was being collected,11 but this was in direct contradiction to a statement made several months earlier at a congressional hearing by Director of National Intelligence James Clapper. Clapper went on record with the following exchange:

  SENATOR RON WYDEN: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

  CLAPPER: “No, sir . . . Not wittingly. There are cases where they could inadvertently perhaps, collect, but not, not wittingly.”12

  President Obama continued to deny the accusations of domestic spying with a number of public statements as the story made national headlines. “Nobody is listening to your phone calls,” he assured us during a June 10, 2013, press conference.13 This was followed by an appearance on the Tonight Show, where he assured host Jay Leno, “There is no spying on Americans.”14

  But it wasn’t true. This assurance, like the often made promise about being able to keep your existing health insurance—period—was a tortured exercise in political expedience. As the weeks rolled on, more information came out revealing the extent of the NSA’s spying on American citizens. In addition to more than three thousand supposedly unintentional privacy violations in a one-year period, it was also revealed that a number of NSA employees had admitted to using the surveillance program to spy on former love interests.15

  So if a bureaucrat with an almost unlimited surveillance tool kit wants to cyber-stalk his former girlfriend, what assurances, besides the president’s ever-evolving one, do you have that someone’s not stalking you?

  All of this was just too much to take, even for the New York Times editorial board, hardly charter members of the Ron Paul Revolution: “The administration has lost all credibility on the issue,” opined the Times. “Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it.”16

  Critics have rightly pointed out that the passage of the Patriot Act, by a bipartisan majority in a Republican-controlled Congress, unleashed this torrent of domestic snooping. The national tragedy of the September 11, 2001, terrorist attacks had provided the perfect opportunity to extend the reach of government authority in a way that was both public and popular at the time. Promises of safeguards were made, although few who voted for it had actually read the bill. The advocates of broader authorities for the surveillance saw an opportunity to do something undoable before, and they took it. Remember the words of President Obama’s former chief of staff, Rahm Emanuel? “You never let a serious crisis go to waste.”17

  KNOW YOUR RIGHTS

  The Bill of Rights constitutes the bedrock of our legal protections from the abuse of government power. But fear and apathy and carelessness have started to erode these protections. In the last year alone we have seen egregious violations of the First, Fourth, and Fifth Amendments. It’s past time you knew your rights. You and I will have to get involved if we hope to keep them.

  The First Amendment is almost universally known. It guarantees freedom of speech and of the press, as we
ll as freedom of religion:

  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  The Fourth Amendment is a little less well known, but it is equally important to a free society. It states:

  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.

  The surreal scene surrounding the 2013 Boston Marathon bombing revealed how tenuous our hold on these rights might be. The city was thrown into a panic when, on April 15, 2013, two bombs were detonated near the race’s finish line, killing three and injuring more than two hundred bystanders. It was a horrific act. After one of the suspects, a nineteen-year-old naturalized citizen, named Dzhokhar Tsarnaev, disappeared into a suburban neighborhood in Watertown, heavily armed SWAT teams embarked on a massive manhunt, barging into private residences and ordering civilians to leave their homes.18

  The tactic of using fear to chip away at our civil liberties is certainly nothing new. President Obama has adopted the same essential talking points that are always invoked by the defenders of a more powerful government: “You can’t have 100 percent security and also have 100 percent privacy.”19 In the real world, of course, we will never see “100 percent security.” We live in a dangerous world. Things can happen that are outside our control, and the false promise of perfect safety could easily translate into a blank check for power mongers and a guaranteed path to tyranny.

  Representative Jim Sensenbrenner (R-WI), one of the chief architects of the Patriot Act, seems to have come to terms with the unintended consequences of his good intentions.20 In response to Representative Peter King’s (R-NY) assertion that the NSA had acted appropriately 99.99 percent of the time, Sensenbrenner was unequivocal:

  I don’t think 99.99 percent is good enough when you have a court ruling a program unconstitutional in violating the Fourth Amendment and that program had been going on for many months and the NSA violating court orders. It’s the court that is supposed to protect the constitutional rights of Americans. I think that James Madison did a pretty good job when he put together the Bill of Rights. I view the Bill of Rights as a sacred document and one of the documents that makes America so much more different than any other country in the history of the world.

  The Fifth Amendment will be familiar to many due to the self-incrimination clause and the phrase “pleading the Fifth,” but the actual text contains a number of other important rights as well:

  No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  The due process clause has particular resonance today, after we learned that the Obama administration had ordered the deaths of at least four American citizens through the use of drone strikes without a trial.

  The use of secret courts to circumvent the due process clause is also alarmingly common, as evidenced by the court system set up under the Foreign Intelligence Surveillance Act, commonly known as FISA. The FISA court was created in 1978 as a response to Richard Nixon’s increasingly paranoid efforts to break the law and spy on his political opponents. The idea was that the federal government would have to obtain a special warrant from the FISA court before being permitted to conduct domestic espionage operations targeting its own citizens, hopefully putting a stop to the kind of illegal activities engaged in by the Nixon administration.

  “The constitutional standard for all search warrants is probable cause of crime,” argues Judge Andrew Napolitano.

  FISA, however, established a new, different and lesser standard—thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution—of probable cause of status. The status was that of an agent of a foreign power. So, under FISA, the feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent’s telephone calls or read his mail. Over time, the requirement of status as a foreign agent was modified to status as a foreign person.21

  The important thing to remember about the FISA court is that the opinions it issues are secret, and that means no public oversight or accountability. The Guardian released documents showing that the FISA court had extended more or less blanket authority to the NSA to independently determine which citizens would be targeted for surveillance.22 The court also gave the NSA broad permissions to store and make use of personal data, even when data was “inadvertently acquired.”

  A secret court issuing secret permits to a secret agency to spy on American citizens with impunity, effectively operating outside of the law and the Constitution. What could go wrong?

  TAKING A STAND

  It is always true that, once breached, it is very difficult to restore essential liberties and the promised limits on federal power. Each new dollar and every expansion of authority creates a political constituency that wants still more money and authority. That’s why governments seem to inexorably grow, not shrink, and new powers created by a Republican Congress are later expanded by a new Democratic president.

  That is precisely the speeding train that Senator Rand Paul stepped in front of on the morning of March 6, 2013. Does the president of the United States have the discretionary authority to assassinate American citizens on American soil without due process, before guilt is determined in a court of law? It’s a good question, one that deserves a clear answer. It’s also a question that Senator Rand Paul had asked of the Obama administration and its chief law enforcement officer, Attorney General Eric Holder, a number of times in 2013. But Paul couldn’t get a straight answer. Holder’s heavily lawyered nonresponse gave all civil libertarians—left, right, and center—a serious case of the heebie-jeebies.

  The first written response the attorney general’s office sent to Paul was arrogant, dismissive, and sloppy, seemingly uninterested in fundamental constitutional questions and the constitutionally delineated responsibilities of the legislative branch to check unfettered executive branch power: “The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront,” wrote Holder. “It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate for the President to authorize the military to use lethal force within the territory of the United States.”23

  “Hypothetical.” “Unlikely.” “It is possible.” In other words, it’s totally up to the president’s discretion, and you, Senator Paul, should stop asking questions and mind your place.

  This should have been the end of this particular debate, and there was reason to believe that the White House would once again get away with trespassing constitutional boundaries with little debate and even less accountability. This, after all, was a pattern. So when Rand Paul took to the well of the Senate floor to filibuster, effectively stopping Senate legislative business in protest to the administration’s nonanswer, there was little reason to believe that he could make a difference. At least that’s what the conventional wisdom inside the Beltway believed.

  I will speak until I can no longer speak. I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.24

  The Senate was preparing to vote
on the confirmation of President Obama’s nominee for director of the CIA, John Brennan. It was likely a surprise when Paul stood up at 11:45 A.M. to address the marble-walled chamber, so few Beltway reporters took any notice. “Certain things rise above partisanship,” Paul told the mostly empty room. “And I think your right to be secure in your person, the right to be secure in your liberty, the right to be tried by a jury of your peers—these are things that are so important and rise to such a level that we shouldn’t give up on them easily. And I don’t see this battle as a partisan battle at all. I don’t see this as Republicans versus Democrats. I would be here if there were a Republican president doing this.”

  The D.C. establishment interpreted Paul’s gesture with its typical cynicism. MSNBC host Lawrence O’Donnell won the prize for most blindly partisan and hateful reaction, arguing—if you can call it actual argumentation—that supporting Paul’s protest was the very worst decision you could ever make. “If you want to #StandWithRand,” O’Donnell asked, “do you want to stand with all of the vile spewing madness that came out of that crazy person’s mouth?”25 After a while, it became clear that he was projecting:

  “Horribly flawed.”

  “Empty headed.”

  “A little bit more than crazy.”

  “Performance art.”

  “Spewing infantile fantasies.”

  “Sleazier.”

  “Stark raving mad.”

  “Psychopath.”