The conservative vision of America, by National Review
The leading right-wing magazine calls for the elimination of most restrictions on presidential eavesdropping on Americans -- including those guaranteed by the Fourth Amendment.
Published October 16, 2007 11:51AM (EDT)
(updated below)
Today's National Review Editorial on FISA and eavesdropping describes the modern "conservative" movement's view of America:
A sensible FISA fix would set a low threshold for the executive branch to commence monitoring. There should be no restrictions when targets are non-citizens outside the United States, even if they contact people inside the United States.
So the President and those under his command should be completely free to eavesdrop on every one of the international calls you make to, or receive from, any foreign "target" -- with no oversight or restrictions of any kind. And since the designation of "foreign target" is within the discretion of the executive, National Review is advocating that the President possess virtually absolute and unchecked power to eavesdrop on any international calls made or received by Americans. And that's not all:
Reasonable suspicion should be the standard when an American citizen or permanent resident alien is targeted. . . . As federal judge Richard Posner has observed, probable cause allows us to monitor known dangers, whereas the security challenge today is to figure out who is a danger.
So even when the President wants to eavesdrop on calls and other communications (such as emails) of American citizens inside the U.S., there should be no more "probable cause" requirement. That standard, imposed by the pre-9/11 Founders as a central check on federal power, is now too burdensome -- so sayeth the "conservative" advocates of restrained government power and adherents to the "original intent" of the Founders. And they all but admit that their vision is barred by the Constitution, not that they care, as they proceed to argue:
It is irrational to give non-Americans within our borders probable-cause protection: The Fourth Amendment does not require it, and experience shows that most foreign terrorists who infiltrate the U.S. are either illegal aliens or temporary legal immigrants.
They argue for the elimination of "probable-cause protection" for "non-Americans" by asserting that "the Fourth Amendment does not require it." Presumably, then, based on their own argument, the Fourth Amendment does guarantee "probable-cause protection" for eavesdropping on American citizens -- yet National Review nonetheless expressly argues that this protection, even for Americans, ought to be abolished ("Reasonable suspicion should be the standard when an American citizen. . . . is targeted"). Even by the premises of their own argument, then, they are expressly advocating the abolition of the core Fourth Amendment protection for American citizens -- the right to be free from government searches in the absence of probable cause.
And what of the fact that the U.S. has managed under every President from Carter to Clinton to defend itself in compliance with this horrendous "probable cause" burden under FISA, even as Ronald Reagan -- as the National Review folklore goes -- heroically vanquished the Soviet Empire? According to NR, that all happened before the Greatest and Most Sophisticated Threat Ever Known to Mankind -- small roving bands of stateless and army-less Islamic Terrorists -- Changed the World Forever:
International terrorist networks are different from the Communist threat that FISA's Cold War-era authors had in mind. They are less predictable, more likely to strike, and more adept at exploiting new technologies which allow them to remain in contact with their operatives.
When Communists were the Enemy du Jour -- Ronald Reagan's "Evil Empire" -- they were the root of all Evil, the Soul-less, God-less Machiavellian Warriors with designs on World Domination who posed a grave, imminent and existential threat to our nation, to everything we held dear. Back then, in the Era of The Communist Enemy, even to suggest that there was anything restrained or unthreatening or at least rational about the Evil Communists would subject one to all sorts of invective -- involving allegations of anti-Americanism and treason and moral relativism and the like -- from the National Reviews of the worlds.
But no longer. Now that the Communist super-villains of yesteryear have been replaced by Islamic Terrorists as today's Prime Enemy, Communists have undergone a radical, retroactive make-over. According to National Review, back then we could afford laws like FISA and we could expect our Government to abide by annoying constitutional guarantees (such as the Fourth Amendment) because those Communist simpletons were rational, sensible, even honorable enemies -- and not very sophisticated.
Identically, and hilariously (in the most perverse way imaginable), some "conservatives" are even arguing that we treated Nazi detainees well during World War II only because -- unlike the primitive (though simultaneously cunning and sophisticated) Islamic mongrels we battle today -- Nazis were honorable Western gentlemen who posed a far less formidible threat and thus could be treated in accordance with civilized norms. As Captain Ed recently explained:
It must be said, however, that [World War II interrogators] faced a different enemy in a different war. The Germans fought to expand territory through traditional warfare, at least as arrayed against the US and the West. While they conducted sabotage missions in the US through espionage, they did not use terrorist infiltrators to attempt to kill thousands of American civilians. They also did not face religious extremists who believed that death brought them to Allah and 72 waiting virgins for taking out women and children. One can make a case that the civilized techniques of PO Box 1142 worked because their [Nazi] detainees also believed themselves civilized members of the Western culture.
The Enemies we now face (unlike our past Enemies -- the weak and simplistic Communists and the cultured, gentlemanly Nazis) are so cunning, so Evil, so fanatical, so scary that we must change the very nature of our country. Constitutional and other restrictions on government power are literally obsolete, argues National Review, because the people who insisted on those safeguards were unaware of the unprecedented Evil posed by the Islamic Terrorist.
Hence, the modern "conservative" movement embodied by National Review expressly calls for the complete abolition of restrictions on the President's power to eavesdrop on virtually all of our international calls, and the abolition of "probable cause" protections for when the Federal Government can monitor our communications. After all, if we don't submit to all of this, we might lose our freedoms.
Amazingly, these are the very same people who, in the 1990s, endlessly claimed to distrust government power and even put bumper stickers like this on their cars to prove it:
And they are the same people who continue to publish things like this -- from National Review in 2004 -- still pretending to believe in these "conservative principles":
Yet in the long run, Goldwater had an extraordinary influence on the Republican Party. . . . He did as much as anyone to redefine Republicanism as an antigovernment philosophy: "I fear Washington and centralized government more than I do Moscow," he said -- and this from a cold warrior who had once suggested lobbing a nuclear bomb into the men's room at the Kremlin. . . . .But, in philosophical terms at least, classical conservatism does mean something. The creed of Edmund Burke, its most eloquent proponent, might be crudely reduced to six principles: a deep suspicion of the power of the state; a preference for liberty over equality; patriotism; a belief in established institutions and hierarchies; skepticism about the idea of progress; and elitism. . . . .
The American Right exhibits a far deeper hostility toward the state than any other modern conservative party. How many European conservatives would display bumper stickers saying "I love my country but I hate my government"? How many would argue that we need to make government so small that it can be drowned in a bathtub? The American Right is also more obsessed with personal liberty than any other conservative party . . . .
The heroes of modern American conservatism are not paternalist squires but rugged individualists who don't know their place: entrepreneurs who build mighty businesses out of nothing, settlers who move out West and, of course, the cowboy. There is a frontier spirit to the Right -- unsurprisingly, since so much of its heartland is made up of new towns of one sort or another.
These "rugged individualists" of the frontier, these swaggering skeptics and despisers of government power, these Burkean defenders of individual liberty who hate "centralized government" and -- above all else -- are guided by "a deep suspicion of the power of the state," now want to vest virtually unlimited secret power in the President to spy on Americans. Has there ever been a political movement more antithetical to the political values they pompously espouse than the right-wing movement -- those "small government" Authoritarians -- epitomized by National Review Editors?
UPDATE: I was a guest yesterday on the radio show of AntiWar.com's Scott Horton -- an actual believer in limited government -- and we discussed many of these issues. Those interested can hear the interview here.
By Glenn Greenwald
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