Too often people substitute their own sensibilities as immutable truth, and define others as invalid by default. One method to avoid this kind of self-defeating fallacy is the dialectic or Socratic method - the theoretical foundation of political discourse and democracy. Unfortunately, there is often a gross inequality of intelligence and talent - as well as extreme differences in cultural style - between proponents of one position or another, making true communication difficult. A useful remedy to this, however limited, is to assume both roles yourself and use your full arsenal of reason to argue against your own sensibilities.
If your position is as strong as you believe, this process will only strengthen your commitment and add new tools to your arsenal of arguments. If not, then you may find flaws in your reasoning that, once modified, will make your arguments stronger. And sometimes you may find that you are completely wrong altogether - a possibility without which life would be incredibly boring. So, I will attempt such a dialog in this diary on the subject of civil liberties in the context of surveillance, search warrants, the 4th Amendment, and related topics.
For the purposes of this imagined colloquy, I will be assuming two roles: Federal law enforcement, arguing for strengthened search, surveillance, and detainment powers, and the citizenry, arguing for strong civil liberties protections and adherence to the 4th Amendment. I will strive, to the best of my ability, to faithfully argue these perspectives.
While it is true that much of the elements seeking to undermine civil liberties are just power-hungry, the truth is that there are law enforcement professionals with sincere arguments to make on behalf of warrantless surveillance, roving wiretaps, etc., and it is crucial that we address them and win converts if we are to protect the 4th Amendment. I understand that there is a spectrum of opinion within the law enforcement community, but for the purposes of this colloquy, that side of the argument will argue for positions taken by the Obama administration.
Citizen: The stipulations in the 4th Amendment to the Constitution are clear on the limits of government search and seizure power. There must be probable cause, and due process of law must be afforded to all subject to search, seizure, or imprisonment. Furthermore, search warrants are required to state specifically what is to be searched and what is to be sought.
Agent: We have been handed powers that exceed these stipulations, and inherit a government in the process of investigations that rest entirely on their violation. Many if not most of these investigations do, in fact, bear directly on American national security, and abandoning these powers would be tantamount to abandoning those investigations because the evidence is tainted by being acquired extralegally.
There is no political consensus either among the American people, in Congress, or in the courts that these practices should be reversed, and yet the consequences of law enforcement (or the Executive branch as a whole) unilaterally reversing them and returning to a rigorous 4th Amendment standard would fall entirely on the individual officials who made that decision. Any subsequent slip-up or failure of any kind to prevent terrorism would be predictably attributed to this reversal, the officials behind it would lose their ability to deal with Congress and elements within their own agencies, and might have to resign as a matter of practical necessity.
Those who replaced them would still technically have the powers foregone by their predecessor, and yet could reinstitute them at the stroke of a pen. Should this occur, the 4th Amendment would not just be in a state of violation as it is at present, but would be regarded as having been tested and found obsolete to modern exigencies. Law enforcement cannot be expected to unilaterally oppose the weight of political will in the government and forego tools of investigation given to them by Congress. There must be political will behind such a reversal.
Citizen: Your job is to enforce the law, and the law clearly and unreservedly denies you the authority to do some of what you are doing. Regardless of the statutory authorities given to you by Congress, the Constitution is the supreme law of the land and explicitly negates those legislative actions.
Agent: Our job is to enforce the law to the best of our practical ability, which requires that we accept the nature and limitations of government. As stated, we cannot be practically expected to unilaterally oppose the will of the institutions that determine our funding when there is no clear consensus either in our own community or among the public in favor of taking such a position. There is no credible scenario in which such unilateral action would shift the balance of power in favor of reversal, but plenty of scenarios in which it would be politically engineered to backfire and further damage the prospects of liberty.
Furthermore, the courts have offered no clear guidance to the effect that these policies are unconstitutional, and to the contrary have often affirmed them. It may be the case that the clear language of the Constitution says otherwise, but once again, the unilateral position of individual officials cannot long stand up against the weight of Judicial opinion, Legislative consensus, and Executive expediency without strong political will among the public that is currently lacking and unlikely to develop in the foreseeable future.
Shall we fall on our swords and lead a Charge of The Light Brigade on principle, only to have our institutions fall (once again) into the hands of truly lawless people who are not only acting out of political necessity, but actually wish to see the Constitution dismantled?
Citizen: If you find that you cannot fully obey the Constitution at present, what is it that you are doing to restore Constitutional rule?
Agent: The law enforcement community is vast, and contains a diversity of agendas. Unavoidably, some are authoritarian in nature, and will continue to push as far as they possibly can, so we depend on the courts to serve as a check on those elements and the Congress to pass laws that the courts can use in doing so.
The courts are presently dominated by right-wing extremists due to the Bush [regime], so that check is somewhat crippled. The President and Democrats in Congress - even those who strongly favor reversing the unconstitutional elements of the Patriot Act and related legislation - generally do not consider it a high priority next to other agenda items, and are not eager to assume the aforementioned political risks while those other items are being worked out, so that avenue of change is stalled. And as warrantless surveillance has virtually zero impact on the daily lives of average people, with few anecdotes to the contrary, there is little likelihood of a spontaneous grassroots movement bringing about action.
What we can do from our end - at least, those in the community who are defending the Constitution - is seek to limit the usage of extralegal tools to cases where failure to use them poses a political risk. However, not every person in a managerial position wishes to do so, and thus their subordinates and equals have no authority to change how they conduct their investigations. Nor is it politically practical to remove everyone from authority who is inclined to abuse the power, as some of them are quite effective at delivering high-profile results that enhance the reputation (i.e., budget) of their respective agencies and departments.
In other words, the best we can do is try to perform a holding-action. The responsibility for enforcing limits on the government rests ultimately with the American people - with you. It rests with you to elect a Congress that will pass the correct legislation, elect Presidents who put decent and reasonable people on the courts, and to yourselves to avoid authoritarian thinking that gives away more rights every time you feel afraid of something. So the most important question is not, what is the government doing to restore the 4th Amendment. The question is, what are you doing to restore it?
Citizen: The abilities of the individual citizen to enforce limits on government activity are themselves greatly limited, and mostly indirect. We can seek to elect the right kind of leadership, and thereby protect the courts from authoritarian ideology, but unfortunately an election is a binary decision and involves a juggling of priorities - the same calculus that makes even liberals in Congress reticent to fully address the topic.
Furthermore, ordinary people have neither the time or the skills to fully understand and interact with law enforcement in both a constructive and assertive manner sufficient to influence policy. They delegate these responsibilities as a matter of practical necessity, and depend on the professionalism, integrity, and patriotism of law enforcement officials as well as elected leaders to at very least defend the most basic and explicit of rights enshrined in our Constitution.
However, the power of the individual citizen in this respect is not zero, and there are positive steps we can take to remain engaged with law enforcement in a manner that both supports their mission while making our expectations clear.
Agent: Therein lies the key to returning to Constitutional rule - a public (or at least sizable portion thereof) capable of both showing support and gratitude for the mission of their public servants and making clear that the limits they are expected to respect are not shackles on their ability to do their job, but rather part of the definition of their job. Unfortunately, most of the general public and a sizable element of the government does not recognize such nuances, so there must be a partnership between constructive parties in the public and in law enforcement to chart a course for a return to full Constitutional rule that is actually politically possible.
Given the complexity of just establishing such a partnership, let alone organizing and wielding it effectively to bring about change, the chances for its success are not encouraging. But we know the chances of success if nobody tries, so the answer to this question is not to point fingers or pompously give orders, but simply to navigate from here to there: To chart a course from the nightmare world we escaped under Bush to where we want to be, and that kind of change cannot happen "at the stroke of a pen" - the government is simply too large and agendas too varied for that to be practical.
Citizen: So when does this partnership begin?
Agent: It just did.