L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 141, October 1, 2001
HOPE? OR GLASS?
No Friends of Liberty in Foxholes?
by David M. Brown
Exclusive to TLE
Are there no libertarians in foxholes?
In a recent op-ed first published by the Boston Globe, reprinted by Reason Magazine at their web site, then reprinted by the electronic newsletter Freematt's Alerts, Cathy Young opines that maybe individual rights and human freedom aren't so sacrosanct after all -- not if we're in a foxhole and the terrorists are lunging at us with box-cutters in their teeth.
Just as there are no atheists in foxholes, perhaps there are no libertarians in them either, Young suggests.
I don't know. It's a theory. Perhaps no foxhole residents possess any convictions of any kind. Perhaps the human spirit simply shrivels and withers in foxholes. But I doubt it.
"Do I like the idea of people being able to encrypt electronic communications so that they are beyond surveillance?" Cathy Young asks. "Frankly, I found it scary even before September 11 -- precisely because of the threat of terrorism. It is said that there are no atheists in foxholes; perhaps there are no true libertarians in times of terrorist attacks. Even in the Declaration of Independence, the right to liberty is preceded by the right to life."
How sad to read these comments. Is Cathy Young implying that if I don't want the government to be able to open my mail at will, I'm an enabler of terrorism?
I agree that the right to liberty is grounded in the right to life. It pertains to what my right to life entails in a social context -- what others owe to me and what I owe to them, if we are to be able to function in support of our own individual lives and also get along with each other. It's true that the right to liberty doesn't mean the right to do any old which thing I choose to do. I don't have the right to threaten my neighbors or do arbitrary violence to them. If I act as a criminal, I do forfeit the right to walk as a free person. And if government has (true) probable cause to suspect me of criminality, yes they should have every reasonable power to investigate.
But how can I be asked to forfeit my right to protect my own personal privacy in advance of any reasonable evidence of any rights-violating wrongdoing or planning of same?
When I am in a public context like an airport, whose managers might reasonably request the ability to search my suitcase as a condition of my doing business with them, I can understand submitting to an inspection ... though I might not agree with it and might even think it's offensive and obtuse, depending on how long they linger over the underwear.
But Cathy Young is talking about another case altogether. She is suggesting that I must give up a particular right to act on my own behalf when the private enterprise involved is entirely willing to sell (or give me) the particular good which Young says I have no right to possess: robust encryption software.
Why? Because I "might" act as a criminal? Or does encrypting my private stuff per se constitute a violation of somebody's rights?
And if so, whose?
Young also says that it would be okay to check out my electronic mail as long as there is "due process." Well, that sounds okay, though with the FBI's notorious Carnivore technology, my private email may well be read in full if the Carnivore system gleans one or two suspect words. No warrant required.
Surely Cathy Young is aware that the government does not always have good reasons for the things it does. At least if the feds and the cops must apply for a warrant, they have to give a court some before prying into my personal things. But from what I gather, Carnivore is premised on the notion of not having to bother about warrants before inspecting the email of particular individuals. It supposedly can gulp and scan every single piece of email that goes through a particular electronic hub, without any differentiation between one individual and another. That is the point. Are "probable cause" warrants going to be granted to scan the email of all the millions of email users -- and if so, doesn't that destroy the notions of probable cause and warrants?
I don't suppose such considerations even apply to making it illegal for people to effectively encrypt their email and documents so as to head Carnivore off at the pass, as well as other possible info thieves. That's some other kind of violation of constitutional protections and basic rights.
Young's rationale for violating my rights seems to be the same rationale offered by the critics of bearing arms and other methods of protecting yourself. Gun control is also a violation of liberty in the name of safety. Of course, far from ensuring safety, gun control deprives people of a means to provide for their personal safety. Don't believe me? Well, think about this. Suppose a thug comes at you and if you had a gun you could overpower him and protect yourself, but because of gun control/victim disarmament laws you don't have a gun and you can't overpower him and protect yourself. Well, it is true enough that in that moment you also don't have any ability to commit a terrorist act or shoot little babies with that gun you don't have. But you also can't use that nonexistent gun to protect yourself. See, you don't have the gun. You can't use things you don't have. I should think this would be obvious.
In the same way, Young would deprive persons of a means to provide for their personal privacy and the safety and security of their private information on which, who knows, their very lives may sometimes well depend. Certainly robust encryption might be very useful to dissidents living under totalitarian rule, for example.
If guns are outlawed, only outlaws will have guns. If robust crypto is outlawed, only outlaws will have robust crypto. Or does Ms. Young believe that terrorists be obliging enough to use only the government-approved crypto technology, the one with the backdoor entrance for the FBI?
What's next? A camera in every street corner and living room? Should the government know where everybody is at any moment, and every single thing everybody is doing in any given moment? Well, why not? Rights, as Young implies, must give way when "safety" is at risk. And surely if there is a computer-searchable video bank of everything everybody does, it will be hard for terrorists or anybody to cover their tracks. As Winston Smith discovered. (Never mind whether such universal surveillance and cataloging and retrieval of the video clips is technologically feasible right at this moment. If it's not technologically feasible today, it will be technologically feasible tomorrow. And you would only need to sign up about 50 percent of the American populace for the job of keeping an eye on themselves and the other 50 percent.)
Let's say that lives are indeed "saved" as a result of universal surveillance. Since per Cathy Young, life per se -- survival per se, whether or not in freedom -- in itself trumps liberty as a value, there can be no objection that the trade-off is too excessive at any particular point in the process of giving up our liberty. If Young disagrees, then I would ask her what is the criterion or principle that she would employ to determine when the trade-off becomes unjustified? (Too Draconian? Big Brother run rampant? Oh come on. Hello. Safety. Remember? Safety.)
Any such principle would also have to show that the rights which I thought I had and which are now to be traded away -- i.e., including the right to take peaceful action in self-protection of my personal privacy -- were never truly my rights at all. A right -- a fundamental right, based on my nature as a human being and the basic requirements of my survival in society -- is something that can't be traded away merely because of some abuse that somebody else (i.e., somebody who is not me) might commit.
Young also seems to assume that if a criminal or terrorist is deprived of one convenient method of developing their plans in privacy, he will not then resort to some other method: for example, code words and regular mail. Or getting together in a hotel room. (Oops. Forgot. All the hotel rooms will have video camcorders installed. So they meet in the woods.)
Then there is the fact that there are many effective things that can and should be done to anticipate and combat the terrorists that do not at all entail violating the rights and constricting the peaceful action of innocent persons. After all, until September 11, we didn't even take the threat all that seriously. It was only a few embassies here and there being wrecked.
The free society is not a "suicide pact," Young writes. I agree. Well, if the passengers and crew aboard all those planes that met disaster on September 11 had a) not been tutored to cooperate with terrorists and b) been armed at the time of the hijacking (at the very least, if the crew had been armed), might not all that death have been prevented?
This is war, but it is a war on two fronts. With the exception of a few deranged left-wingers, Americans are united against the terrorists. We agree that we want to live, and that it is wrong to kill us. Let us also be united in defense of our individual right to life, liberty, and the pursuit of happiness as practiced in daily life here at home. Maybe it is too much to demand that all Americans be consistent in this cause, given all the engrained confusions of modern politics. But it should not be too much to demand such allegiance at least from those who up until September 10 professed to be informed advocates of the principles of the Declaration, and gave some evidence of actually being that.
When you're in a foxhole, it is nice to have compatriots in adjacent foxholes. It is nice to have soldiers who stick with you through thick and thin. So let there be no more defections to the other side. Cathy Young, come back. You are managing to get published in the Boston Globe. That's great. Fight for liberty there.
Defense of life requires defense of liberty, including the right to bear arms and robust crypto. Now is a time not to surrender our rights, but to recognize and fight for them.