Barry Eisler

Friday, July 11, 2008

Safety First; The Constitution Second

If you're a regular reader of HOTM, you know where I stand on the recently enacted FISA Amendments Act of 2008, which grants the government broad new domestic eavesdropping powers and immunizes telecoms from previous felonies (wouldn't it be great if retroactive immunity from felonies were available to all of us? Tragically, you and I don't donate enough to politicians to qualify. But we can always hope).

Reading the transcript of the signing ceremony, I was struck by some of President Bush's rhetoric. The president said, "The bill I sign today will help us meet our most solemn responsibility: to stop new attacks and to protect our people." And he reiterated: "Protecting America from another attack is the most important responsibility of the federal government -- the most solemn obligation that a President undertakes."

What's odd about these statements is that they're at odds with the Constitution itself. Article 2, Section 1 provides, "Before he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation:--'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" Apparently, the framers thought the one thing so in need of protection that they required it to be called out explicitly in an oath is the Constitution. They didn't see fit to have the president swear an oath to defend the country, the currency, or anything else -- just the Constitution. For someone who purports to be a "judicial conservative", Bush's reordering of Constitutional priorities are odd.

True, Article 4, Section 4 provides, "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence." But there's nothing in the language of the Constitution providing that any of these responsibilities is "most solemn" or "most important." Those priorities are external inventions, and certainly not in keeping with a notion that we ought to interpret the Constitution based on its own clear language.

So we're left with a question: why would a president who purports to be a judicial conservative claim his most solemn obligation is to prevent attacks on the nation, when the Constitution itself clearly provides otherwise? If the president's reordering of priorities is correct, does it not follow that he might be impelled to protect America at the cost of the Constitution? Do we really want to empower any president, Democrat or Republican, with such a convenient rationalization?

The right is fond of pointing out that freedom isn't free. And certainly it isn't: likely it can only exist and be preserved in the presence of certain dangers (then-Secretary of Defense Rumsfeld himself pointed out that "Freedom is untidy.") Many of these dangers could be eliminated by a totalitarian government, just as we could dramatically reduce crime by eliminating Due Process and the burden of proof beyond a reasonable doubt. Would the trade-off be worth it?

What concerns me most is that President Bush's stated priorities -- Safety First, the Constitution Second -- might accurately reflect the current priorities of a significant number of Americans. If our culture comes to prize safety above all else, we'll gradually cash in our freedoms attempting to buy our safety. If that's really the way we've come to view the world, maybe McCain advisor Phil Graham had a point when he recently described Americans as "whiners" and victims."

Liberty is our precious inheritance. We can marshal it wisely, or we can place it in blind trust, where, predictably, it will be lost.
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Wednesday, July 09, 2008

Obama Caves on Warrantless Surveillance and Telecom Amnesty

As an Obama supporter, I have to say the Senator massively disappointed me today with his craven capitulation on warrantless surveillance and amnesty for law-breaking telecoms. His vote was a betrayal of numerous campaign promises. I had thought more of him and feel naive now for having believed him earlier.

If you value the Fourth Amendment more than Senator Obama seems to, here's a link to Strange Bedfellows, a new organization dedicated to preventing unchecked government power and preserving the Fourth Amendment. I've already signed up.


Become a StrangeBedfellow!
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