Dispatches from the Creation Wars


This time from Todd Anthony, who is telling the same lie about the ACLU’s objection to warrantless wiretapping that the pedestrian right has been telling all along about their position (I say pedestrian right because among the intellectual right, including scholars like Bruce Fein, there are many who agree with the ACLU on this and many other issues). The lie:

This sham of an institution is now bellowing on about the Bush administration’s NSA electronic surveillance program, stating that the program is 1.) illegal, and 2.) steeped in fear.

So what would the ACLU have the government do? The answer is simple: sit on its collective hands while terrorists plot and foment violence. Let’s apply common sense to their argument.

No Todd, let’s start by applying intellectual honesty to their argument, which requires stating it accurately. It is a lie to claim that the ACLU objects to all wiretapping and they just want the government to “sit on its collective hands” and let terrorists commit violence. The ACLU’s position is quite simple: the Bill of Rights is not suspended merely because the government invokes the word “terrorist” any more than it is suspended over any other type of criminality.

They are not demanding the end of government surveillance and wiretapping, they are only demanding that it be done in accordance with the law and with a minimal set of safeguards in place to protect the innocent – you know, those same safeguards the founding fathers found so important that they actually wrote them into the Bill of Rights. The requirements are minimal: before the government can engage in a search, such as a wiretap, it must get a warrant from a judge based on probable cause. It’s right there in the 4th amendment, you can look it up.

The ACLU isn’t even objecting to the lower standards found in the FISA law, which allows the government to get a warrant for such surveillance, when it involves a sensitive national security issue, from a secret court. They aren’t even objecting to the weakened safeguards in the FISA law that allow the government to get retroactive warrants up to 3 days after they do the search. All they are demanding is that the government get a warrant, that they go before a judge, even outside public view, and document that there is a valid reason for the surveillance. That’s all. It’s hardly an unreasonable position.

Mr. Anthony, on the other hand, is full of unreasonable positions. Like this one:

They brazenly assume that the federal government eavesdrops on every citizen and that internet providers are constantly threatened to hand over email and internet histories.

Can someone step forward and state unequivocally that their first amendment rights have been violated?


Well see, that’s the problem Todd – no one can say unequivocally that their rights have been violated (but we’re talking about 4th amendment rights here, Todd, not first amendment rights – try reading the constitution sometime) because no one has any way of knowing who is being targeted – not even the FISA court, which was set up precisely to provide that safeguard while maintaining the secrecy necessary for intelligence gathering.

It’s a perfect force field for violating the constitution – we won’t tell you who we’re listening in on so you can’t know you’re being listened to and therefore you have no standing to sue over it. This is exactly the sort of unchallenged and arbitrary power that the 4th amendment was designed to check in the first place. And we’ve already weakened those protections dramatically in the name of intelligence gathering in the FISA law, but the administration doesn’t even want to comply with those.

Ask yourself why, Todd. The FISA court has virtually never turned down a request for a warrant. The Patriot Act lowered the standard to be met to get a warrant so it’s not even probable cause anymore, they just have to certify that it’s part of a national security investigation in order to get a warrant. And there is no time crunch because FISA allows them to get a warrant retroactively if they must act too quickly to go to the court to get a warrant in advance.

So there is simply no rational reason why they can’t just go and get those warrants and still fight the battle effectively. Indeed, they claim now that they have begun, voluntarily, to get such warrants, while reserving the right to stop doing so if they want to. If they’re telling the truth, that means they are currently doing what the ACLU wants done. According to Todd’s reasoning, that can only mean that the administration wants the terrorists to win.

Furthermore, its appeal by the 6th Circuit Court was thrown out because the ACLU could not prove that anyone’s telephone conversations were actually eavesdropped. So makes the ACLU so worried? Moreover, with what should an average, law-abiding citizen be concerned?

Well Todd, let’s think about this. Why would the administration refuse to comply with even those very minimal safeguards described above? It can’t be because they’re afraid the court will turn them down a legitimate request because that has never happened. It can’t be because it needs to move quickly because the warrants can be gotten 72 hours later if need be. It can’t be because they can’t meet the standard of proof necessary to get the warrant.

So why would they not want to comply? Perhaps because they are listening to things they should not be listening to? Does this seem paranoid to you? It’s not. In fact, our government has already done it. Look up information on the COINTELPRO program, where the government used illegal wiretaps – without warrants because no judge would have given a warrant for them without probable cause – to gather embarrassing information on civil rights leaders to blackmail them with.

Still think it’s paranoid, Todd? Then ask yourself this question: would you trust Hillary Clinton with the power to listen to any phone call she wants without ever having to get a warrant to do so, even from a secret court, and without ever being able to find out if she did it? Your answer to that question should tell you why your views on this are so ridiculous.