Stewart Baker Plays Pick Up Sticks With Civil Rights

Have you ever noticed that guy who glides through airport security as if he owned the place, looking cool and sexy and getting those longing glances from hot chicks?  That would be Volokh Conspirator Stewart Baker.

On the one hand, Baker is a fairly impressive guy, having just returned from “a fine hiking vacation” and already placing an op-ed in USA Today. I admire a man who gets things done. But on the other hand, the fresh air hasn’t done much to clear out his head.

Many of us played Pick Up Sticks in our youth, slowly pulling first one then another stick from the jumble. You lost the game by pulling out the stick that collapsed the pile. It’s a great way to pass a rainy afternoon, but a bad way to set national security policy.

Cool analogy, bro, though you apparently didn’t read the rules of pick up sticks too closely. You lost when you moved another stick, not when the pile collapsed. Not that this is terribly important, but to the extent your analogy works at all, it’s not a lesson in total failure but unintended consequences.

The notion that rights were thrown overboard after 9/11 is popular but false. From the beginning, the rights of Americans were part of the debate. The 2002 USA Patriot Act was in fact heavily negotiated with civil liberties proponents in Congress.

Not to quibble over language, but even if Americans’ rights were part of the debate, the one that lasted twelve minutes before the USA Patriot Act was enacted by legislators tripping all over themselves to out demagogue each other, that doesn’t preclude their being thrown overboard. It’s like saying we should give bin Laden a fair trial before we hang him.

In any event, we’re now being asked to push the pendulum back, not to Sept. 10, 2001, but to Dec. 6, 1941, when gentlemen supposedly didn’t read each other’s mail. Pearl Harbor taught us that the world is a much more dangerous place if we do not gather intelligence and break encryption — even in peacetime. We prevailed in World War II and again in the Cold War because we learned that lesson.

Did somebody tell you that the reason we were unprepared for Pearl Harbor was that we made a deliberate decision, gentlemen that we are, not to read Hirohito’s mail?  Much as I hate to burst your bubble, but that didn’t happen.

That doesn’t mean that the details of the intelligence business are pretty. They are not. Our adversaries spy on us. So do our allies. And often we return the favor. That’s the way of the world. And if we give up our intelligence tools, others will not.

But the “current frenzy,” as you call it, isn’t about spying on foreign nations, Stew. It’s about collecting and maintaining the communications and metadata of Americans.  Whether you want to spy on adversaries or allies, they come from other countries, not New Jersey.  There are maps that can help you distinguish between us and them, and they should have been shown to you about the same time the whole Pearl Harbor, World War II thing was discussed in school.  Perhaps this is an opportunity to go back to your teachers and complain?

Yet the fact is, we’ve seen aggressive civil liberties campaigns in the second term of every president since at least Bill Clinton. In the 1990s, these campaigns made it politically impossible to object when the Foreign Intelligence Surveillance Act court imposed a “wall” between intelligence and law enforcement. Then, in George W. Bush’s second term, Congress put new limits on intelligence wiretaps. And now, right on schedule, another round of civil liberties attacks is being launched, this time at President Obama.

Have you considered that your “cause and effect” analysis is, oh, backwards?  Perhaps the thing giving rise to a civil liberties backlash is the aggressive efforts of first term Chief Executives who, in their zeal to prove to Americans how tough they are and the lengths to which they’ll go to protect our safety, pound the public safety trope in order to be re-elected to a second term.  While many Americans applaud extreme measures to secure our safety (cue Ben Franklin quote), others doubt the sacrifice of civil liberties is the right way to achieve security.  Since the president can’t be elected a third time, second terms tend to be opportune for challenging the evisceration of Americans rights.

We seem unable to separate our feelings about the occupant of the Oval Office from the agencies that protect all Americans. Every few years, in a fever of opposition to whoever has been re-elected to the White House, we look over the country’s security measures and pull another one out of the pile.

Oddly, this would appear to be the one instance where neither a Democrat nor Republican president blinds us to the damage.  If it has happened to Clinton, Bush and Obama, then it’s not a team exercise, but rather an effort to undo the first term damage regardless of the party in power.

That can’t go on. The time has come to stop playing Pick Up Sticks with the lives of Americans and the security of the country.

Or the time has come to stop playing Pick Up Sticks with Americans’ civil liberties. See how poor analogies can come back to bite you in the butt, Stew? So while I’m very impressed with your work ethic that produced an op-ed, even one so brief and factually dubious, it gives rise to a very sincere suggestion: Go take another hike.

 

6 comments on “Stewart Baker Plays Pick Up Sticks With Civil Rights

  1. Drew

    My take on Baker is that he has to be too smart to actually believe most of what he is saying, at least initially. But he has taken the very smart approach of being a contrarian, which helps you get published! And, you get to be the token voice on the other side of the issue, which ensures you get put on law professor panels a lot.

    He’s doing what i’d certainly be doing if I were a law professor. The alternative – that he actually believes we should be thrust into a panopticon for our own good – is a bit too horrible to contemplate.

    1. SHG Post author

      Cynical, but I too have had a hard believing that he’s not smart enough to realize the inane things he says. Then again, I’ve seen a lot of people who seem as though they should know better make vapid argument with complete sincerity, so who knows?

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