Give Me Liberty Or Let Me Think About It

By Michael Kinsley
Friday, January 13, 2006

Most of us are not Patrick Henry and would be willing to lose a great deal of freedom to save our lives. It's not even necessarily deplorable. Giving up a certain amount of freedom in exchange for the safety and comfort of civilized society is what government is all about, according to guys like Hobbes and Locke, who influenced the Founding Fathers. And that's good government. Many people live under bad governments that take away more freedom than necessary, and these people choose not to become heroes. That is not a contemptible choice, especially if we're talking France or maybe even China, and not Stalin's Russia or Hitler's Germany. The notion that freedom is indivisible -- if you lose a little you have lost it all; if one person is deprived of liberty then we all are -- is sweet, and useful for indoctrinating children. But it just isn't true.

The current debate about government wiretapping of U.S. citizens inside the United States as part of the war on terrorism -- like the debate before it about the torture of terror suspects, and the debate about U.S. prisons in foreign countries, is all about the divisibility of freedom. The arguments all seem to pit hard practicality on one side against sentiment, if not empty sentimentality, on the other. There are the folks who are fighting a war to protect us from a terrible enemy and there are the folks getting in their way with a lot of fruity abstractions. You can note all you want the irony of the government's trampling American values in the name of protecting them. But that irony can be turned on its head. If the cost of losing the war and the cost of winning it are measured in the same currency -- American values, especially freedom -- then giving up some freedom to avoid losing all of it is obviously the right thing to do.

Arguing for abstractions while the other side argues for practicality is, to some extent, just a burden that civil libertarians -- or even liberals in general -- will always have to bear. In the old days, liberals at least had the luxury of the easy, tempting argument in the economic sphere -- "here is some money from the government" -- while conservatives were stuck with long-term abstractions such as fiscal responsibility. Now conservatives promise tax cuts starting yesterday and liberals are left defending big government and fiscal responsibility as well.

The good guys need to frame their argument in ways that don't require people to be heroes -- to give up something practical and immediate, such as safety from terrorism, in exchange for an abstraction, such as liberty, especially the liberty of someone else (like a young Arab swept off the streets of Baghdad and locked up in a secret prison).

The argument starts with the traditional, and still powerful, slippery slope: Today it's him, tomorrow it's you; or, today it's your international phone conversations, tomorrow it's your desk drawers. The Bush administration is helping to prevent slippery-slope arguments from seeming paranoid by slipping and sliding before our very eyes. We gave it the thuggishly titled Patriot Act and now it claims constitutional authority to ignore the act's safeguards.

And the slippery slope extends beyond civil liberties, which not everyone fetishizes, to the rule of law generally, which is more popular. That Congressional Research Service report revealed last week is a meticulous and deadpan analysis of the administration's express and implied reasoning in claiming a right to wiretap conversations at will. No legal restriction on presidential power of any sort could survive the administration's logic, which skips with ease over statutes and the Constitution itself.

The Fourth Amendment is typical of laws protecting civil liberties in that it doesn't forbid the government to invade people's privacy, or lock them up or take their property. Rather, it requires the government to be "reasonable" and to explain its reasons to someone else.

In short, it requires a reality test. It recognizes that even freedom exists in a world of trade-offs. But it does not necessarily trust the government in power to make those trade-offs correctly.

This is the second answer of the soft-hearts to the hard-heads: We're not as otherworldly as you think. We do recognize that there is a trade-off between the values we celebrate and the practical demands of protecting those values. We just need a reality test. Is the enemy in the war on terrorism really worse, justifying greater violations of civil liberties and human rights, than the enemy in World War II was?

Here, once again, the Bush administration helps to make the softies' case. It could have jumped through the required hoops and been wiretapping away about five minutes later. Or if the administration didn't like the way some court was interpreting the law, it could have gotten a law tailor-made from Congress just the way it liked. ("I'll take it medium rare, with cuffs but no pleats, and hold the right to a jury trial.") But that was too much trouble.

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