The Zeal Of Well Meaning Men

Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

-Louis D. Brandeis, Olmstead vs. United States, 1928


The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation. The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval.

Matt Yglesias writes:

Of course, checking out someone’s browser history could be very useful in a terrorism investigation. But if I had some kind of cause—probable cause, let’s say—to suspect someone of involvement in terrorism, I could just get a warrant.

James Madison wrote:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

In that spirit, the Fourth Amendment to the Constitution was ratified:

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.

I am not a literalist regarding Constitutional interpretation, but the language of the Fourth Amendment seems easy enough to understand. The Obama proposal seems to clearly run afoul of the Fourth Amendment.

Speaking for me only

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    Fighting terrorism and intelligence investigations (5.00 / 1) (#1)
    by BobTinKY on Thu Jul 29, 2010 at 02:36:25 PM EST
    all part of our excellent foreign policy.

    Overwhelming (5.00 / 1) (#2)
    by Militarytracy on Thu Jul 29, 2010 at 02:53:26 PM EST
    All circuits shorted out.  I'll probably rant at some point....being the Crybaby Firebagger that I am.

    What overwhelms me is not that (5.00 / 6) (#11)
    by Anne on Thu Jul 29, 2010 at 05:14:00 PM EST
    Obama has made this request - because it doesn't surprise me in the least - but that the steady march toward authoritarian government doesn't seem to make much of a ripple in the wider American community; then again, when someone doesn't have a job and can't find one, has run out of unemployment insurance extensions, can't pay the rent or the mortgage, or pay the health insurance premiums much less afford the co-pays and deductibles that actual care will still cost, and is treated to example after example of the rich getting richer and the poor being asked to sacrifice more of what they can't afford to give up, it's kind of hard to get worked up about the government wanting to poke around in your work computer.

    But someone needs to get worked up, and while I expect the usual voices to chime in in protest, it once again won't make a difference.

    What does it take, do you think, before the people just rise up?  Honest to God, sometimes I think, in a kind of tin-foil hat kind of way, that the beat-down a lot of people are experiencing is purposeful: just kick us until we dare not make a peep, and then the path to total power is clear.

    I know that sounds rather dramatic, but I am beginning to understand the French Revolution in ways I never have before.


    The glories of bipartisanpship! (5.00 / 4) (#13)
    by Demi Moaned on Thu Jul 29, 2010 at 05:17:24 PM EST
    As Greenwald notes:
    A new ACLU Report examines the first 18 months of Obama's civil liberties record and documents how his embrace of the prior administration's policies has transformed Bush/Cheney radicalism into the "new normal."

    Exactly (5.00 / 2) (#16)
    by Lora on Thu Jul 29, 2010 at 05:54:20 PM EST
    Now, how exactly is Obama different from Bush in the spying on Americans area?  Better at lipstick application, perhaps.

    Nobody screams when he does it (5.00 / 5) (#17)
    by Militarytracy on Thu Jul 29, 2010 at 05:57:59 PM EST
    The liberals just sit down and STFU. Just like they did when he said he was going to drill baby drill.  He expanded drilling in ways that Bush could have only dreamed of because if Bush had tried to do it every liberal would have screamed their fool head off and had seizures in the streets.

    Most are also laboring (none / 0) (#20)
    by BackFromOhio on Thu Jul 29, 2010 at 07:07:30 PM EST
    under so much more financial stress, there is not enough energy to protest about things that do not directly deprive people of life's necessities.

    I don't believe that for a minute (none / 0) (#38)
    by Militarytracy on Fri Jul 30, 2010 at 09:17:12 AM EST
    Nobody is protesting anything that has to do with life necessities much either.  And if you do you are a firebagger or a crybaby.

    That is exactly how a perceive it (none / 0) (#14)
    by Militarytracy on Thu Jul 29, 2010 at 05:31:26 PM EST
    A new normal for some, not for me.  And when is anyone going to finally have enough?  It will be when something horrible happens.  And the utterly reactionary response of the administration to the evil of Sherrod, and now they will look up everyone's  wazoo on a whim even more than they currently do, leaves me with a vote of zero confidence in anyone's civil liberties being even remotely protected.

    After all, it was just 'partisan bickering' (none / 0) (#28)
    by ruffian on Fri Jul 30, 2010 at 08:14:39 AM EST
    that divided us before. No one really had an ideological dog in the fight, right? <snark>

    University of Chicago Law School (5.00 / 2) (#41)
    by oculus on Fri Jul 30, 2010 at 11:07:02 AM EST
    [P]rofessor of constitutional law says its o.k.  It must be o.k., no?  Maddening.  Professor Tribe, speak up now!

    Maddening is the word (none / 0) (#43)
    by ruffian on Fri Jul 30, 2010 at 11:28:02 AM EST
    I really do feel like I've been 'gaslighted'

    Please explain! (none / 0) (#46)
    by jawbone on Fri Jul 30, 2010 at 06:18:15 PM EST
    i think of the movie "Gaslight," but is that the reference? Thnx!

    Also understanding... (none / 0) (#18)
    by kdog on Thu Jul 29, 2010 at 06:38:25 PM EST
    how cats like Hitler and Stalin, and the governments they led, get and maintain power.

    Have an enemy, handy scapegoats, a good line of bullsh*t, and a media to frame it for ya and it's basically carte blanche.

    People get by on their small victories stickin' it to the man...it's gotta get a helluva lot worse before any rising up goes down.



    Watching as Bush used an attack on the WTC to lead (5.00 / 1) (#47)
    by jawbone on Fri Jul 30, 2010 at 06:20:03 PM EST
    our nation into an illegal and immoral invasion and occupation of Iraq made me understand how fear damages reasoning ability.

    And I then felt some sympathy for the German people of the Weimar/Hitler era that I had not felt before....

    It can happen here...and has.


    Sorry state of affairs... (5.00 / 4) (#3)
    by kdog on Thu Jul 29, 2010 at 03:04:27 PM EST
    when fundamental liberty is a partisan affair...can we pretend Pres. Doe of Party "X" came up with the idea so we can unite in opposition?

    I wish it were more partisan (5.00 / 1) (#33)
    by ruffian on Fri Jul 30, 2010 at 08:54:36 AM EST
    Then at least Obama would be against everything Cheney ever stood for.

    Touche... (none / 0) (#37)
    by kdog on Fri Jul 30, 2010 at 09:08:03 AM EST
    I'll take right for the wrong reasons at this point:)

    But then the right will have to reflexively oppose...the partisan shuffle is kind of a trap like that.


    Unfortunately, I think losing your liberty (none / 0) (#39)
    by republicratitarian on Fri Jul 30, 2010 at 09:31:29 AM EST
    is a bipartisan issue. The government will always pass laws to give itself more power.

    It effects are bipartisan (none / 0) (#44)
    by ruffian on Fri Jul 30, 2010 at 11:30:33 AM EST
    It can be used by any party in power against its enemies on the other side. Or anyone else.

    In the Bush era it sure seemed like there were a lot more people against it on the left than there were on the right. Not so much anymore.


    The NRA does not believe it's a Partisan affair (none / 0) (#30)
    by Rojas on Fri Jul 30, 2010 at 08:27:32 AM EST
    and they have been successful. Second Amendment has been the only BORs issue we've seen push back in the last two decades. Some might get a clue.

    The government already collects ... (5.00 / 1) (#5)
    by Demi Moaned on Thu Jul 29, 2010 at 03:37:02 PM EST
    vastly more data than it can evaluate. Frankly, I expect that all the data about anyone's internet activity is already available to them.

    Greenwald elaborates on this ... (5.00 / 1) (#12)
    by Demi Moaned on Thu Jul 29, 2010 at 05:14:46 PM EST
    I wrote previously about the Obama DOJ's extremely dubious (and dangerous) arguments in court that the law already allows them to access such Internet and email records with no warrant, but now they are attempting to have Congress re-write the law to vest them with that power.

    Somewhere Dick Cheney is smiling, :) (5.00 / 3) (#6)
    by republicratitarian on Thu Jul 29, 2010 at 03:40:08 PM EST
    Land of the free indeed.

    Not good, not good from any perspective n/t (5.00 / 1) (#7)
    by BTAL on Thu Jul 29, 2010 at 03:54:54 PM EST

    At what point do we get to (5.00 / 3) (#8)
    by oldpro on Thu Jul 29, 2010 at 04:23:10 PM EST
    stop calling it the Department of Justice?

    And the hits just keep on coming (5.00 / 4) (#9)
    by shoephone on Thu Jul 29, 2010 at 04:49:47 PM EST
    Obama's FISA dance was much more than a hint.

    Object to "dance" as innocuous. (none / 0) (#42)
    by oculus on Fri Jul 30, 2010 at 11:11:11 AM EST
    The even more frightening part (5.00 / 2) (#10)
    by BTAL on Thu Jul 29, 2010 at 04:50:17 PM EST
    from the WaPo article:

    But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

    See emphasis (my addition).

    A field office has this level of authority?  Wow.

    THe Bush Admin (5.00 / 1) (#19)
    by BackFromOhio on Thu Jul 29, 2010 at 07:05:12 PM EST
    was so effective at scaring us all into thinking that the threat of terrorism is so imminent and all powerful that even the Dems have forgotten about the expedited procedure of the FISA courts that not only worked so well to protect us until 9/11 but also provided some safeguards for the suspected ones.  How the Bush Admin managed to sidestep such an effective and efficient procedure without evidence of its having failed to protect in any way is one for the records.

    Gosh, where to start (1.00 / 1) (#21)
    by BTAL on Thu Jul 29, 2010 at 07:19:14 PM EST
    Please post the actual vote record for FISA and the Patriot Act.  When you do that you can also post all the "lets go to war in Iraq" statements of Clinton, Kerry, Reid, Schummer etal.  It really neuters your Bush/Cheney are the devil incarnate argument.  That is unless you want to admit that GWB was not a complete idiot (that the left loves to spout) and admit that he is the master of deceit and could get the masses to hang on his every word.  

    Does Hope and Change ring a bell?


    Gesh (none / 0) (#24)
    by jimakaPPJ on Thu Jul 29, 2010 at 08:51:05 PM EST
    Do you really believe this??



    So, you're saying (5.00 / 2) (#23)
    by robotalk on Thu Jul 29, 2010 at 07:46:47 PM EST
    the Obama admin is without understanding, but is well meaning.

    I disagree.  I think they know exactly what they are doing and don't care how it harms us little folks.

    Constitutional rights for little people.  So 1776.

    Constitutional rights for little people. So 1776. (none / 0) (#48)
    by jawbone on Fri Jul 30, 2010 at 06:26:12 PM EST
    So well put, robotalk, I had to highlight and put in a comment so I can easily find it. Fookin' brilliant.

    After considering the title of this (5.00 / 1) (#29)
    by Anne on Fri Jul 30, 2010 at 08:18:01 AM EST
    post a little more, I guess it's important to consider the consequences of zeal from people who aren't well-meaning, and consider the precedents established that carryover from the well-meaning to the not-so-well-meaning.

    This was the biggest problem I had with Pelosi taking impeachment off the table after the 2006 mid-terms; I thought the time was right to draw some lines that future presidents would observe.  Instead, Pelosi's decision normalized that power, and Obama has taken full and frightening advantage of it at every opportunity.

    And the Democratic Congress is doing nothing about it.  Does that mean they're okay with it because Obama's a (nominal) Democrat, or would they be okay with it regardless of which party was in power?

    Where is the line for them?  Or do things like this just take a backseat to more important things like, "can I get re-elected?"

    If we're talking "well-meaning" in the context of preserving and protecting basic rights, I don't see this latest request in that category.  But, if they mean to continue to encroach, to grab as much power as they can, to legislate away the oversight, then, sure, it's "well-meaning."

    Guess I have to revise yet another entry in my dictionary.

    It's ok now (none / 0) (#32)
    by jbindc on Fri Jul 30, 2010 at 08:51:00 AM EST
    Because Obama controls the purse strings of the DNC and if these people wish to get re-elected, they are going to have to play nice and not rock the boat too much.

    Another argument for publicly-financed (5.00 / 1) (#40)
    by Anne on Fri Jul 30, 2010 at 09:59:01 AM EST

    And I'm warming to the idea of term-limits, too - although I think if you take private money out of the mix, it increases the chance of higher turnover when those elected do not perform.

    But I'm sure I will not live long enough to see that happen.


    Not well-meaning (5.00 / 1) (#36)
    by DancingOpossum on Fri Jul 30, 2010 at 09:03:28 AM EST
    I, too, question the "well-meaning" part, but I rarely give Obama--or any pol--that much benefit of the doubt.

    I don't like it at all, but it's one thing for an Obama FBI to be able to do this, quite another for a Gingrich or Palin or Pawlenty, etc., FBI.

    See, that's the problem right there in a nutshell. "It's always OK when our guy does it." No, it isn't. It's evil no matter who does it. (Of course this also assumes that Obama is "our guy," which is a highly dubious proposition.)

    I have truly come to believe that we won't take serious, collective action until we have nothing left to lose, and our leaders are certainly doing their best to get us there. That's what's been happening in Latin America, where a wave of popular resistance continues to swell upward. The latest country to assert its liberty is Honduras, in the wake of the coup. There's an amazing article on the post-coup resistance at the London Review of Books blog that concludes with a lesson for us all, if we listen:

    Like the rest of Central America, Honduras celebrates its independence on 15 September. By then the resistance front aims to have collected more than a million signatures (in a country with fewer than eight million people) calling for a new constitution. In his absence, they have elected Zelaya as their leader. They show no signs of giving up the struggle, but on the other hand they are well aware that, if Honduras slips back into obscurity, the oppression will only get worse.

    -- John Perry, LRB Blog, http://www.lrb.co.uk/blog/2010/07/27/john-perry/after-the-coup/ (h/t to Chris Floyd)

    Frankly (4.86 / 7) (#4)
    by CST on Thu Jul 29, 2010 at 03:08:52 PM EST
    I kind of have a problem with anything being on a list of things the FBI can "demand" without a court order.

    There is no reason for it (none / 0) (#15)
    by Militarytracy on Thu Jul 29, 2010 at 05:33:36 PM EST
    None what so ever!

    It really ought come as no surprise (3.50 / 2) (#26)
    by Cream City on Fri Jul 30, 2010 at 08:10:46 AM EST
    as it sure sounds a lot like the Chicago Way, writ large and made legal . . . beyond the borders of Chicago, where anything goes.

    Oh, fer G*d's sake! (3.00 / 1) (#22)
    by NYShooter on Thu Jul 29, 2010 at 07:23:54 PM EST
    If you don't have anything to hide......


    aw right, aw right, I'm leaving.

    The really appalling thing is (none / 0) (#25)
    by gyrfalcon on Thu Jul 29, 2010 at 11:02:40 PM EST
    that he's perfectly OK with the idea that a, say, President Gingrich or (shudder) President Palin should also have this authority.

    I don't like it at all, but it's one thing for an Obama FBI to be able to do this, quite another for a Gingrich or Palin or Pawlenty, etc., FBI.

    It's completely beyond me how any Dem. politician could have his head buried this far up his *.

    That's part of what happens when he (5.00 / 1) (#27)
    by ruffian on Fri Jul 30, 2010 at 08:11:34 AM EST
    comes into it with his mindset that it is just 'partisan bickering' that makes us think Gingrich, Palin, Bush, etc. are all that bad.

    It really is all coming together isn't it? He seems to have very few ideological differences with the right. And left blogostan, who I thought used to be very good at pointing out their own ideological differences with the right, thinks it is just whining to keep doing so now. This is really really bad.


    It's not even a matter of (5.00 / 2) (#35)
    by gyrfalcon on Fri Jul 30, 2010 at 09:01:16 AM EST
    partisan differences.  The point about stuff like this is one needs to stop and think of what these powers would mean in the hands of the worst possible kind of person/administration.  You don't get to say only good guys can use these powers.  Everyone can use them.

    Bad as George Bush was, I can imagine far worse, which is why I thought it was so crucial he be impeached for abuse of power or that those powers be strongly renounced by the next pres. so that there would at least be some brakes put on the precedent.

    Instead, we have those powers reaffirmed, and broad additional ones added.


    Just when I think we are starting to get the (1.00 / 1) (#31)
    by jimakaPPJ on Fri Jul 30, 2010 at 08:47:48 AM EST

    Someone always dives in with a "but the Repubs would be worse."


    Reality bites, eh? (5.00 / 2) (#34)
    by gyrfalcon on Fri Jul 30, 2010 at 08:57:00 AM EST
    Why don't you sieze the day (1.50 / 2) (#45)
    by jimakaPPJ on Fri Jul 30, 2010 at 02:54:48 PM EST
    and have Obama fix the problem?

    Hopey changey and all that.