What is Legal and What is Right

In defending the National Security Agency’s collection of Americans’ phone records and emails, proponents have relied heavily on the argument that these actions are legal.

Let us stipulate, for the sake of argument, that the NSA program is utterly consistent with the letter of the law. That doesn’t make it right.

When one delineates between right and wrong, the reflex of today’s relativist zeitgeist is to demand, “Who are you to judge?” The answer, which one wishes were forthcoming from more people, is, “I am (or was) a free citizen, with a God-given capacity, and duty, to make decisions.” That’s not to say every decision you make will be correct, nor is it unrestricted license to judge other people, but no amount of PC browbeating can deprive you of your innate sense of propriety.

And the government collecting telephone and email records of every citizen is just plain wrong.

To be sure, the NSA’s advocates have tried other tacks, such as claiming that only “metadata” are collected (that is, numbers, locations and durations of phone calls, excluding voice content), and that emails are not being read without a warrant. But besides that these claims strain credulity (and polls consistently show Americans do not buy them), they conflate what is permissible with what is possible.

As the Guardian newspaper has meticulously demonstrated, only a few forms and protocols stand between NSA employees and contractors and the content of online communications. While the letter of the law may mandate individualized warrants (and this is in no way clear), reading your emails requires no further infrastructure and would constitute a breach of rules without consequences.

One of the most forceful defenders of the NSA’s actions is Andrew C. McCarthy, a columnist for National Review and PJ Media, whom I have quoted favorably in other contexts.

As a lawyer, McCarthy evinces an occupational propensity to substitute precedent for common sense. To his credit, he recognizes that stressing the program’s legality has made it a tougher sell in the marketplace of ideas. Even so, his enthusiasm for NSA surveillance remains undiminished, and he avers that his side’s foundering is less a failure of philosophy than tactics.

Quoth McCarthy: “most Americans have internalized the ‘expectation of privacy’ contrivance; they now believe the Constitution gives them enforceable privacy rights in the property of others if it reflects on aspects of their personal lives. More importantly, the Fourth Amendment was never the end of any privacy argument anyway. It merely defines the minimal ambit of privacy government must respect.”

McCarthy’s precedent-based mangling of the Fourth Amendment, insisting its proscriptions against unreasonable searches of “persons, houses, papers, and effects” do not apply to phone records, since lawyers have decided those belong to “third parties”; i.e., phone companies, is a prime example of how accomplished legal minds can eschew basic reason.

Besides that telephone companies keep certain records because the government requires them to, such as which towers convey which calls (making it a bit rich for the NSA to turn around and claim those records belong to the companies, thereby justifying their untrammeled collection), the Constitution predates the telephone by almost a century. Do McCarthy and others enraptured by precedent really think the Founders would be okay with NSA surveillance? Honestly? If James Madison had a cell phone, you can bet the Bill of Rights would have been even clearer.

The question comes down to the proper role of government in a free society.

Commonly for Democrats, the government’s role could be Hamlet-sized, but they’d still want it bigger. As more of them object to the NSA’s conduct, however, including Rep. Jared Polis, who co-sponsored a House amendment to rein in the surveillance program, one wonders if their liberty-minded principles will prevail.

Republicans, meanwhile, are in the midst of a well-publicized dust-up between their traditional, security-minded old guard and their younger, libertarian wing, led by Sen. Rand Paul. The outcome of this kerfuffle could be dispositive for the future of the party, if not the nation.

The overarching rationale for NSA surveillance, of course, is to prevent terrorism, and those who support the program insist there are many successes we simply don’t know about (this is reminiscent of jazz fans who tell you to listen to the notes NOT being played).

Some, like New Jersey Governor Chris Christie, have summoned the spectre of 9/11, as though one horrific instance were an evergreen rationale for ubiquitous government surveillance.

But so long as our government collects and monitors every personal thing we write or say, what freedoms are left to defend?

It may be legal, it may even be well-intentioned, but it isn’t right.

Theo Caldwell, host of TV’s Global Command Centre, has been a member of the New York Stock Exchange, the Chicago Board Options Exchange, the American Stock Exchange, and the Kansas City Board of Trade. He can be reached at at theo@theocaldwell.com

Chris Christie or Rand Paul?

“Every man is more than just himself.” –Herman Hesse

Mathematically, the odds are against either New Jersey Gov. Chris Christie or Kentucky Sen. Rand Paul becoming president of the United States. Of all the millions of eligible Americans throughout history, including many thousands of successful politicians, the number of individuals who have achieved the alchemy of talent, timing and luck to attain that high office is a mere 43 (counting Grover Cleveland twice).

Even among the dozen or so preferiti who get talked up on a quadrennial basis, there can be only one.

And while it seems plausible that one or both of Christie and Paul will run for president in 2016, their prospects for success are less significant than the philosophy each man represents.

As the recent, well-publicized squabble between them demonstrates, while these two men share a party, they embody vastly divergent views of America. Christie sounds much like a robust Republican of the recent past, prioritizing security and strength to counter foreign enmity; Paul, meanwhile, avers that many of the direst threats facing the nation are domestic in nature, including and especially the power and intrusiveness of our federal government.

In short, they have very different ways of defining danger, and defending freedom.

The shorthand has been that Christie represents the Republican “Establishment,” while Paul champions its “Libertarian” or, if you like, “Tea Party” faction (though the latter moniker carries sufficient misapprehensions so as to cloud discussion).

In modern parlance, you will find defenses of Christie in the columns of major publications, whereas Paul’s supporters can be read in the “Comments” section.

The recent brouhaha was touched off by comments Christie made at a governors’ forum in Colorado, in which he called Paul’s brand of libertarianism a “dangerous thought,” termed his objections to the National Security Agency’s surveillance programs “esoteric,” and dared NSA critics to present their case to the “widows and orphans” of 9/11.

Paul responded by offering Christie a dictionary, since a program that monitors every person in America is something other than “esoteric.” From there, the spate descended into unbecoming silly-bears about bacon and who has time for a beer with whom, but their initial disagreement represents a crucial question for their party, and for America. To wit, have we sacrificed too much freedom in the name of security?

This is a discussion that Republicans, and the country, must have.

Many will say that Republicans did not object to the security state when it was being constructed by President George W. Bush, and that’s fair enough. But as government surveillance expands and the militarization of American life increases in the second term of a Democratic president, perhaps we can shoulder bipartisan responsibility and ask: What would we like to do next?

“Remember 9/11” is a worthy and, one hopes, eternal commemoration of those who were killed that day, but it cannot serve as an indefinite rationale for egregious conduct. As a matter of course and reason, rallying cries are temporary. Were they not, some Canadian could say, “Remember the War of 1812” and punch you in the face.

The difference between September 10 and September 12 is less about capabilities than mindset. We were not attacked because the government was unable to track the phone calls and emails of every American. Rather, on an institutional and individual basis, Americans had taken a holiday from history through the 1990s, not recognizing that the terrorist acts of that decade represented a war already underway.

As others have noted, by the time the passengers of Flight 93 learned the fate of the other planes, and opted to overpower their hijackers, Americans had already twigged to the new reality, and inoculated themselves against similar attacks. The passengers who subdued underwear bomber Umar Farouk Abdulmutallab on Christmas Day 2009 reinforce this view.

Notwithstanding these instances, are the terrorist threats we face really so vast and various that we must countenance ubiquitous government surveillance?

Freedom is the issue. As conservatives and liberals disagree over where market failure occurs, demarcating the point at which government should intervene, Paulites and Christocrats differ over which approach is most effective to safeguard liberty.

Must the security state be maintained, as Christie argues, or is that very state the principal threat to the freedom it purports to defend, per Paul?

Which man’s approach is more consistent with America’s values, and which will preserve its liberty for the future? Can there be reconciliation of their views?

For the GOP, perhaps the strongest option would be a genuinely articulate candidate who can speak the language of traditional Republicans, while embracing the vision of a rebirth of freedom (Sen. Ted Cruz, please call your office).

Then again, maybe none of this will matter. In 2016, as in 2012, perhaps Americans will opt for more of the same and send another Democrat to the White House (having said all this, watch Christie-Paul win, like, 48 states).

But regardless of who is on the ballot, the visions embodied by Chris Christie and Rand Paul present Americans with a momentous choice.

Theo Caldwell, host of TV’s Global Command Centre, has been a member of the New York Stock Exchange, the Chicago Board Options Exchange, the American Stock Exchange, and the Kansas City Board of Trade. He can be reached at at theo@theocaldwell.com