Trading freedoms for national security...do you have a choice?
By Ralph Mroz
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The class at the academy was, I suppose, typical. There were classes on the neat stuff: defensive tactics, firearms, vehicle stop procedure, and so on. And then there was the boring stuff: lecture after lecture about search and seizure. Terry stops, the three-prong test, limits of curtilige, consent searches and exceptions, etc., etc. etc.
To add insult to injury, the bulk of our time was spent in these boring lectures about the fourth amendment.
Boring to everyone, it seemed, but me.
Freedom, Police Effectiveness & The 4th Amendment
I had come to police work as an adult, as a second career. Like most adults-even law abiding ones-I had been under the impression that the cops were just boobs who gave me speeding tickets when they should have been out catching murderers.
Ironically-and again like most other Americans-I also assumed that when the cops encountered a bad guy, they just whupped him and took him into custody. Unless they shot him first. That's what Starsky and Hutch always did! Coming to police work from a martial arts and firearms background, that seem darn appealing.
But those fourth amendment lectures changed all that. I was rapt-and probably the only one in my class who looked forward to them.
I realized that these lectures were about what constitutes a free society...and what constitutes a totalitarian one. I realized that the limits on what the state-that is, a police officer-is allowed to do on the street every day determines whether we live in a free society or an oppressive one.
If the state can stop you from freely going about your business whimsically, it is a short line from there to dictatorship. If the state can search your person or belongings at will, we are well down the road to an totalitarian government.
The practical concept of probable cause took on profound meaning when viewed from the perspective of, not a limitation on my role as a police officer, but as a necessary principle in a free society. I began to see the genius in the courts' distinctions between a police officer's hunches, reasonable suspicion, and probable cause, and the different ways in which each permits us to constrain the liberty of a fellow citizen.
I saw how the courts have, for the most part over the years, been guided by common sense in setting down the limits on police power in confusing and dynamic situations. I would not want to live in a society that did not have these limits; in a society where the police could break down my door, or throw me in prison, or detain and search me at will. Because we have these limits on state power (and are also the most prosperous country in the world-no coincidence), thousands of people every year risk their lives (and sometimes lose them) trying to get here.
Now yes, the courts have sometimes decided badly. And certainly we often know who the bad guys are, and can't do anything about it because of the fourth amendment limits on our powers. And yes, society is getting worse. Yes, the courts' interpretations of the fourth amendment sometimes make our job harder..and sometimes even impossible.
Yes, things could be better…but would you really want to live in a society without these protections?
Freedom vs. security: Who calls the shots?
The context of the debate over government surveillance and other forms of intrusion into our personal lives has not been articulated properly, I believe.
1) The primary purpose of any government is to protect the physical safety of its citizens. It can't get any more fundamental than this.
2) The means that the government must use to do so-EFFECTIVELY-IS DEPENDENT ON THE TACTICS OF THE PERPETRATORS. They decide if, to be effective, we must tap phones, build a call database, etc.
3) Therefore, the debate over what the government should be allowed to do is moot; the bad guys set those parameters-so long as we expect the government to fulfill it's fundamental mission. In other words, as citizens we can decide what we want the safety level of our society to be-what chance of success terrorists and criminals can have. But that decision, coupled with the means that terrorists and criminals use to perpetrate their acts, will define the tools that law enforcement must use and the level of intrusiveness that is necessary.
4) Therefore, the debate should be about how we make sure that the government uses its power only to subvert criminals-not over whether it should have the means to do so. The issue of freedom and oppression thus should not be centered around the tools we as law enforcement have at our disposal, but the capriciousness with which we are allowed to use them. That is, on our responsible use of them, based on strict necessity and probable cause.
The extent of harm possible
The issue of security vs. liberty revolves around a balance between three elements: the harm an individual can cause, the means individuals have to defend themselves from such harm, and the measures that the government must take to protect its citizens from such harm.
Throughout most of the America's history, weapons-both those used to cause harm and those employed to counter it-were personal. Hands, knives, swords, spears and small arms (guns) were essentially personal weapons. With them a bad actor could generally cause harm on only a personal scale-that is, to one or a to small group of individuals.
Likewise, groups of bad individuals could cause harm only to reasonably similar-sized groups of people. In balance to that situation, the defensive measures that individuals could take were likewise personal in scope; good people and potential victims of crime could effectively defend themselves with weapons of similar proportion to the personal weapons that were the main weapons of the criminals of the day. In that situation, the tools that the government needed to combat crime were essentially orientated around persons or small groups of them.
These were tools such as individual records inspection, surveillance (including wiretaps) of a small numbers of places or people, and so on. This balance between these three elements-how severe the harm that a criminal could cause, the ability of persons to defend themselves with available weapons, and the tools that government had at their disposal to fight crime, worked to both safeguard constitutional liberties, personal privacy and combat crime- to an acceptable level with acceptable trade-offs.
Until about a century ago even wars between nations were fought with personal weapons. Tools of modern war-bombs, large artillery, aircraft, and so on-were developed in the twentieth century but generally managed to stay out of the hands of individuals or small groups intent on causing harm to United States citizens until the sixties. At that time these weapons did find their way into the hands of some small criminal and terrorists groups, and the concern with modern terrorism was born. The new feature about this threat was that it upset the balance described above.
Now a single individual (or small group of them) could cause harm on a large scale, and the personal weapons that citizens and police had access to were unable to defend against it. Likewise, the investigative tools that that government had long employed to combat crime were unable to prevent or deter such large scale damage from these powerful weapons in the hands of individuals or small groups.
This asymmetric situation was recognized and much worried about by many in and out of the government, but nothing was really done to correct the imbalance...until it happened to us. Timothy McVeigh was seen as a fluke, but September 11, 2001 brought home the stark reality of this unbalanced situation to us.
Now we as a nation have to address individuals (or small groups of them) with weapons of war (or their equivalent) in willing hands. Now murder rates cannot be "naturally" held to acceptable levels by social norms and victims' defense strategies (such as personal arms.) Now we need to address the fact that victim's defense options and the government's tools to prevent and deter murder are out of proportion to the abilities of terrorist criminals.
So this is the context in which the important national discussion of personal liberty vs. security should be taking place. It would be nice if the nation could have great security in this new world while maintaining Hercule Poirot era investigative techniques. It would be nice if we could be safe from mass murder with the aid of our martial arts skills and legally licensed pistol.
But clearly we can't. And because we can't, we should change the substance of the debate going on now to reflect this new-to-the-world set of circumstances. But unfortunately that debate has devolved into mere political slogans.
An Inverse Relationship
The erroneous assumption is often made that personal safety is inversely proportional to the availability of personal weapons (handguns, rifles, etc.) The statistics of the last few decades have always pointed away from this conclusion however, and the recent work of John Lott positively disproves it. We now know that personal safety is directly proportional to the availability of personal weapons: more guns, less crime.
This fact appeals to common sense, in so far as that violations of personal safety are most commonly accomplished with personal weapons-hands, knifes, and small arms. Therefore the more that potential victims are equally so armed, the less successful the assailants will be.
Note the symmetry in this-both the bad guys and the good guys are armed 1) equally, and 2) with weapons that can only affect small numbers of individuals. Thus if someone assaults you, your weapons and tactics are roughly equal to those posed by the threat.
Likewise, if someone assaults a larger number of people (say opening fire in a stadium), then assuming that there are armed good guys around, the number of victims that the bad guy can hurt is limited again to a small number of people.
This is the sort of symmetric situation that the drafters of the second amendment envisioned-and given their historical context, it is probably the only situation imaginable at the time.
Weapons of mass destruction (WMD), however, pose a different challenge. The relationship of personal safety to liberty in the context of WMD is an inverse one-the more readily available WMD are, the less safe we are. The reason is that WMD create an asymmetric situation-one in which potential victims, with only personal arms at their disposal, are not as equally well prepared to defend themselves as the bad guys are equipped to hurt them.
If you assault me with a knife of gun in a dark alley or my bedroom, I have a fighting chance with my skills and a gun. If you launch a cruise missile at my house, or release a toxin into my water supply, or drive a commercial jet into my office building, I don't have an effective defense.
Why is this important? Because as a response to the events of September 11, the government is proposing several measures which will curtail our traditional liberties to some extent. If the above argument is valid, then the trite saying that liberty and safety have to be traded off, while not true in an era of only personal weapons, is actually true to an extent in an era of easy availability of WMD.
As we've discussed above, the tools that the government needs (to be effective) is determined by the capabilities of the criminals, not the desires of its citizens. Petty criminals that meet on street corners require rather simple and non-invasive tools to observe and investigate. National, violent organized crime requires more invasive tools in order for the government to effectively carry out its primary job. And international, organized, fanatical, cell-based terrorism requires stronger tools and capabilities yet.
Without tools appropriate to the job, there is simply no way for any government to fulfill its first responsibility. You can pine for lost liberties all you want, but in today's world you cannot have them to the same degree as your grandparents did without opening the door to terrorism. It's simply a fact of the way that the world is now constructed.
So, while we need to continue to carefully guard our precious and historically unique liberties, (and I take a back seat to no one in so valuing them!) we need to carefully consider that our nation is now facing a structurally different situation that the framers of the constitution could have ever imagined. As Supreme Court Justice Robert Jackson said, “The Bill of Rights is not a suicide pact.”
We may finally, in fact, have to trade off some of our civil liberties to preserve our most fundamental liberty: the right to life itself.
This does not make me happy.
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