Preserve, Protect, and Defend ... (3 Nov. 2012)

"Preserve, Protect, and Defend" America, Not Necessarily Americans  

   
               A fair number of Americans, including American Presidents, assert that the first duty of the President of the United States is to protect the American people, to protect Americans.

                  And then a smaller group of us pedantic sorts, especially small-r republicans, assert that no, the key duties of the President are to "take Care that the Laws be faithfully executed," serve as commander-in-chief of the armed forces of the United States, and, as s/he swears or affirms — no American may be required to swear an oath — to "preserve, protect[,] and defend the Constitution of the United States."

                  Now does "Constitution" here mean every clause, phrase, and mark of punctuation in the document? The Constitution in its original form — e.g., with the assumption that slavery legally exists and that new slaves could be imported until 1808? Of course not. "Constitution" in the oath means the written document, as amended, plus something like "Constitution" in the British sense of the term.

                  I'd put it that the primary duty of the President is to defend the Republic, the American Republic as constituted in its essentials by the document, The Constitution of the United States. Let's put it, the primary duty of the President is to protect not Americans, but America.

                  This idea is in useful tension with the commonplace truth from Thomas Hobbes in Leviathan to John Stuart Mill in On Liberty to our own Declaration of Independence that the primary duty of any government is to protect its people.

                  Most Americans are either loud about their patriotism or keep their mouths shut; relatively few Americans get arrested any given year — so most Americans, most respectable, voting Americans, would be safer in a police state. Insofar as we have avoided a police state, we put at risk a fair number of decent, innocent Americans.

                  If the tree of liberty is fertilized from time to time with the blood of patriots, it is also fertilized with the blood of men, women, and children who die, or are wounded or maimed, because we make the State prove people guilty and grant bail and allow free speech to those who will insult God and the Prophet Mohammed. Well, and so forth through the Bill of Rights and traditional ideals of liberty.

                  At various times, however, and the years following 11 September 2001 have made up one of those times, there has been consistent over-emphasis on the part of US Presidents and the Congress and other leaders to protect Americans and consistent reluctance to tell the American people to toughen up and be willing to take casualties — civilian casualties — to preserve traditional rights.

                  There has been a failure to explain that even furthering US interests can have its costs, and a balancing favor to continue whether perceived interests are US interests and just what we mean be the interests of America.

                  We cannot have US ambassadors walled up in fortress embassies; we cannot have US Special Forces holed up in secure areas: to do their jobs they must get out among the people, including among people who want to kill them and sometimes succeed.

                  Ambassador Chris Stevens died doing his job, as did two of the CIA security officers who died responding to the attack on the US consulate in Benghazi in Libya, along with at least one other American.
                  To protect America, in some cases even to just achieve US policy goals, some Americans have to risk death or horrible injury, and sometimes they suffer.

                  The first duty of the President is to protect America and further its interests, and to do so s/he may have to get some Americans killed. Each President need to explain this nasty fact to each generation of the American public, and each generation has to debate where to strike a balance.

                  On 22 April 1971, speaking for Vietnam Veterans Against the War — against what we Americans call the Vietnam War — John Kerry asked rhetorically, "How do you ask a man to be the last man to die for a mistake?" Or, arguably, worse than a mistake: we continue to debate the morality of the Vietnam War. What isn't debatable is that the President and government of the United States can err, horribly, and order Americans to kill and die in conflicts that are not necessary to preserve America, wars that hurt America.
                  This idea, too, needs to enter the debate.

                  A bumper sticker is not a philosophy, Charlie Brown, and one-liners on "the first duty of the President" aren't serious consideration of difficult issues.

                  We Americans need to toughen up and be willing to take risks necessary to preserve our freedoms (and our dignity). For example, making US airports less secure but freer puts lives at risk. So be it, I say: I sometimes take planes, and I'm for loosening up security. Let's debate that.

                  We Americans need to get our troops out of Iraq and Afghanistan and much of the rest of the world and shift money from "kinetic" military operations into the civilian economy. Such pulling back will save military lives and may put at risk civilians. So be that as well — and let us debate that also. 

Extraordinary Measures for Extraordinary Threats — Only (24 Jan. 2014)

The makers of our Constitution [* * *] sought to protect Americans in their beliefs, their thoughts,

their emotions and their sensations. They conferred, as against the government,

the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men.

Louis D. Brandeis, Dissenting, Olmstead v. United States, 277 U.S. 438 (1928).

 
            I'm not going to be handling much of Justice Brandeis's great statement on "the right to be let alone," but I am going to look at one implication of it. I also intend to keep repeating Brandeis's point for the foreseeable rest-of-my-life and to expand it; Americans also have a right to be left alone by people other than the government, people who don't know us, don't give a rat's ass about us personally, and just desire something from us: our votes, labor, and/or, usually, money.
            All I want to deal with here is the very basic idea that if we do have a right to be left alone, especially by the government, then the government shouldn't get intrusive unless they really, really have to, and that those intrusions should be strictly limited.
            Specifically I wish to deal here with the basic principle that extraordinary threats can indeed justify extraordinary intrusions, but only extraordinary threats — not the ordinary kind — and only to the degree necessary to meet the threats.
            What will not be here is my rant on the National Security Agency, or Google, needing to stay the hell away from our transmitted data. I want to go back to older issues with the Government of the United States — and the States and smaller jurisdictions — and the Fourth Amendment in its mostly pre-computer, and both pre- and post-"9/11" applications.
            The Fourth Amendment, as you would recall from high school civics if we still taught such subversive, non-job-training, frills-courses — the Fourth Amendment mandates, "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."
            Because of the threat of planes' being hijacked, and then planes' being bombed, we Americans submitted to airport screenings.
            All right: extraordinary threats there.
            Along with the searches, however, came the doctrine of what I'll call "What the fuck, if something turns up — anything turns up — in a legal search, we can use it against you." (Please note that I did not do well on the Law School Admissions Test and that it's safe to assume lawyers have more formal labels for the doctrine.)
            Uh, no. By any name, application of that doctrine with required, routine searches is not right.
            If the TSA person thinks s/he sees a half-pound of C4 in your carry-on bag, they have the right to stop you and make you open the bag. If it is not a half-pound of high explosive but only your quarter kilo of cocaine on top of your hotel-room-reading child-porn collection, they should wish you a safe flight and good luck getting through, say, Turkish Customs and Immigration.
            I am serious here: terrorism is an extraordinary, direct, and immediate threat; illegal drugs are not. If you have a kidnapped child with you that you're dragging off as a sex slave: that's an extraordinary, direct, and immediate threat to the child; pornography even of the vilest sort is not.
            Similarly if you want to enter a prison as a visitor. The authorities have the right to put you through a metal detector and even pat you down to make sure you're not smuggling in weapons; they don't have the right to check out your mouth and rectum to be sure you're not smuggling in drugs — not unless they have good reason to suspect you're bringing drugs in for a worker in the kitchen to use as part of a plot for a mass poisoning.
            And similarly the cops have the right to pat you down if they arrest you. They don't have the right to routinely shackle arrested people or to strip search you as part of "Welcome to Jail" routine. Guns are one thing; if you happen to walk around with a condom of heroin in your vagina or rectum, that is another thing: weird, and maybe a threat of some sort, but not an extraordinary threat or a danger to anyone except yourself, if that condom breaks.
            Extraordinary threats, clear and present dangers — oh, yeah! I want the cops and FBI and TSA and the rest of the bureaucratic alphabet to work hard to protect my precious ass. Lesser dangers, though, I want them off of, and out of, my ass, especially literally.
            I also want them out of my computer's information contents if I travel with my laptop. No high explosives in it or what looks like nerve gas or an itty-bitty generator of a massive electro-magnetic pulse? Then pass it through; there's no reason to go figuratively pawing through the files, not even if they are mostly Salafist calls to Jihad and instructions on how to make bombs.
            (If you're pretty sure I have bomb-making instructions, don't stop me from entering or leaving the USA; have me followed to my co-conspirators.)
            I know that there are Americans out there with different value systems; one of my best friends is a good Leftist on most things but a Navy vet strongly into protecting people. How is this, then, at least for airports and as a concrete example for more generalized thinking though the issues?
            Two lines at airport security. Line 1: They do everything they can to keep you safe and secure. Line 2: Back to basics. I want Line 2, where your luggage goes through X-ray (or whatever) and you go through a metal detector and where the plane has a solid door to the cockpit that's locked from the inside during the flight (with plastic urinals for the cockpit crew, female, as well as male). And in Line 2 you're reminded that the rules have changed since the old days when skyjacking was the fear and that nowadays you resist nasty people making threats.
            Hey, if a guy with a nail clipper can take over a planeful of adults — most of us armed with pens and credit cards and a lot of wasted time watching movie secret agents weaponizing pens and credit cards — then we pretty much all deserve to die. If a guy with explosives taped to his scrotum can blow a hole in the plane, hey, Line 2 flying is still safer than driving a car.

            As recent history has shown, Justice Brandeis was wrong about "the right to be let alone" as "the right most valued by civilized men"; at least in the USA, we value it less than marginal increases in safety. The right to be left alone is still, however, "the most comprehensive of rights," and one that we Americans must strive to take back, even when doing so puts us in a bit of danger.