March 22, 2019

Is the Patriot Act Unpatriotic?

Republican presidential hopefuls Newt Gingrich and Ron Paul had an interesting exchange at the National Security Debate hosted by CNN on November 22nd. Not surprisingly, Gingrich supported the Patriot Act, going so far as to say that it should be “strengthened.” Paul argued that “the Patriot Act is unpatriotic,” because the legislation undermines American liberties. He thinks it should be abolished. Both men did well making their points and each got enthusiastic applause from their supporters. But who was right?

At first glance, it might have seemed as if Paul had stumbled into a “gotcha” by bringing up Timothy McVeigh. In supporting his assertion that one must never give up liberty for security, Paul argued that Timothy McVeigh, the terrorist who blew up a federal building in Oklahoma City in 1995, was prosecuted, convicted, and executed under the existing laws, without the “tools” that the Patriot Act provides to law enforcers. Gingrich replied:

“Timothy McVeigh succeeded. That’s the whole point. Timothy McVeigh killed a lot of Americans. I don’t want a law that says after we lose a major American city, we’re sure going to come and find you. I want a law that says, you try to take out an American city, we’re going to stop you.”

Paul responded:

“This is like saying we want a policeman in every house, a camera in every house, because we want to prevent child beating and wife beating. You can prevent crimes by becoming a police state. So, if you advocate the police state, yes, you can have safety and security and you might prevent a crime, but the crime then will be against the American people and against our freedoms and we will throw out so much of what our revolution was fought for. So don’t do it so carelessly.”

It is likely that uncommitted observers – those not passionately for Paul or Gingrich – thought that both men made good points and that the right answer is “somewhere in the middle.” To be moderate is always viewed as being more reasonable. But is that really true? I believe that the question debated here between Paul and Gingrich is a fundamental question and compromise is impossible. To use a well-worn but appropriate cliche, Gingrich wants America to cross the Rubicon. Once we do, there is no going back.

The crux of the matter is preemptive government. Not just preemptive war, but the ability of the government to act preemptively in any situation. Paul takes the libertarian position that is based upon the non-aggression principle. Government force may never be employed against anyone until that person has invaded the person or property of another. Gingrich takes the more Hobbesian-conservative position: if the government is not all-powerful, we will all be killed.

If “patriotic” means the love of one’s country’s ideals, the highest being liberty for Americans, then you have to agree with Paul. That’s because not only is non-aggression the libertarian position, it’s the founding principle underlying the Declaration of Independence and Bill of Rights. The meaning of the word “liberty” is to be free from coercion, which is free from other people initiating force against you. Once the government or anyone else is legally empowered to do so, rather than limited to responding with force in defense against an aggression that you’ve already committed, then liberty as Thomas Jefferson understood it is gone.

Non-aggression is the concept expressed in the statement that “no person shall be…deprived of life, liberty, or property, without due process of law.” In other words, the government can’t use force against you until it is not only asserted but proven that you have committed an aggression against the person or property of someone else.

If you’re reading this to mean that the government is powerless against individuals until after they’ve committed a crime, then you’re correct. That is the price of liberty and there really is no way to compromise it. Force must always be initiated by someone. To be free means that it is never initiated against the innocent, at least not with the endorsement of the law. A person is innocent until they actually commit a crime. You cannot prosecute someone for what might be in his mind – at least not in a free country. As Paul argued, once you throw out the principle of liberty, you have invited the police state, complete with ubiquitous surveillance, unwarranted searches, curfews, and the rest. It is astounding how much of it is already in place in a nation that calls itself “the land of the free.”

The obvious concern with this line of reasoning is that it would seem that to be free, one must set oneself up as a sitting duck for criminals and terrorists, powerless to resist them until it is too late. Ed Meese cited the “42 terrorists attacks, amied at the United States…thwarted since 9/11,” and went on to say, “Tools like the Patriot Act have been instrumental in finding and stopping terrorists.”

I don’t know how Meese arrived at that number, but it doesn’t jibe with reality. I suspect that it includes all of the entrapment schemes that have been perpetrated by federal law enforcement officers, whereby an undercover agent poses as a terrorist and approaches a mentally unstable person for the purpose of convincing him to participate in a phoney terrorist plot. Once the hapless “terrorist” agrees, the undercover agent arrests him and charges him with a crime.

All of the attempted terrorist attacks that the American public know about since 9/11 have defeated the Patriot Act and other security “tools” insituted since that crime was committed. The shoe bomber and the underwear bomber were both overpowered by private citizens acting in their own defense, after the would be terrorists had defeated the security measures within the Patriot Act and the TSA. Even on 9/11, with the federal government already in charge of security, albeit without the “tools” of the Patriot Act, the only crime that was prevented was the one that would have been perpetrated using Flight 93. Again, it was private citizens acting in their own defense and defense of their neighbors that thwarted the attack. While they were unsuccessful in defending their own lives, they prevented the loss of many, many more.

This illustrates another fundamental element of liberty – the right of each person to be allowed to provide for their own defense. The right and duty of each individual to defend themselves to the best of their ability replaces absolute power in the hands of the government. Consistent with this idea, Paul has been a staunch advocate of the 2nd amendment, while Gingrich, although he supports the right to bear arms in rhetoric, also voted for the Lautenburg Gun Ban and the Criminal Safezones Act, sponsored by Nancy Pelosi.

Gingrich tries to qualify his position on the Patriot Act by drawing a conceptual line between criminal law enforcement and national security. He says that “criminal law – the government should be on defense and you should be innocent until proven guilty. National security – the government should have many more tools in order to save our lives.”

In other words, if the government decides that “national security” is threatened, you are  no longer innocent until proven guilty. He also says that Americans must “build an honest understanding that all of us will be in danger for the rest of our lives.”

Do the math.

This exchange between Paul and Gingrich represents a fundamental choice that the American people have to make. They can take personal responsibility for their security and take power back from the federal government or they can hand unchecked power to the federal government along with their liberty. There is no “centrist” or “moderate” position, because once the principle is conceded, liberty is gone.

As Benjamin Franklin warned, the choice between liberty and security is a false one. No, there were not nuclear weapons in 1755, but to think that the existence of nuclear weapons changes the principle is counterintuitive. Franklin spoke those words in 1755 because the same choice existed then as now. Those who sacrifice liberty in the hopes of greater security deserve neither and will get neither. The most immediate threat to one’s security is always the closest one – the government itself.

In deciding who was right in this debate, Americans are really deciding whether liberty is something they cherish or whether Franklin, Jefferson, Adams and the rest were wrong. If they were wrong or if we’ve decided that there is something fundamentally different today that trumps those timeless principles, let’s at least dispense with the notion that we live in the “land of the free.” At the next sporting event, let the singer end with “o’er the land of the secure, and the home of the safe.” It may not be pleasing to the ear, but neither is Gingrich’s plan for a “secure” America.

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

© Thomas Mullen 2011

You’re On Your Own

There are no end of commentaries on the recent murders in Arizona, resulting in the usual debates.  Pundits argue over whether there should be stricter gun laws, whether talk radio, the movies, or “extremism” contributed to the tragedy, and, most obtusely, what the government should do to prevent a similar incident from occurring again. What is lost is the fact that this tragedy provides yet more proof of something that has been demonstrated to Americans repeatedly over the past decade. The government cannot protect you from the harsh realities of life.

Most people are good people, most of the time. Under normal circumstances, most people would rather cooperate with their fellow human beings in order to achieve their goals rather than steal from them or kill them.  However, some people, at least some of the time, do not “live and let live.” During every moment that we are alive, someone somewhere is committing a crime. Someone is experiencing hardship, whether due to their own bad judgment, laziness, or just plain bad luck. Worst of all, someone is planning to commit an act of violence.  These truths are confirmed by all of human history.

What is unique about the time that we live in now is the extent to which people believe that the government can shield them from these challenges. Never has a society had such high expectations of their government to ensure their security – both personal and economic security. The early 21st century is truly a high-water mark in terms of belief in government to eliminate all risk from the game of life. Over and over, we are offered proof of how foolish this misplaced faith is.

On 9/11/2001, a group of insane fanatics defeated what was at the time the most sophisticated security apparatus in human history and perpetrated heinous crimes against thousands of innocent civilians. The government failed to prevent this crime. The one set of murderers that was not successful was thwarted by private citizens acting on their own. They did not save their own lives, but saved the lives of hundreds, possibly thousands, of others. Our response to this outcome was to give the government more power and private citizens less liberty and privacy.

A few years later, another unbalanced individual tried to blow up a plane with explosives concealed in his shoes. He, too, had defeated the by that time even more powerful government security apparatus and was thwarted by private citizens. Our reaction to that incident was identical.

Last year, the pattern repeated with the so-called “underwear bomber.” The government failed and private citizens thwarted the killer. Again, more power was given to the government and more liberty stolen from the people. We are now allowing ourselves to be photographed naked and physically violated by the government in the hopes that the next time the results will be different.

In 2002, a deranged man walked into the Appalachian School of Law and began shooting students and faculty. There were no police on hand when the shooting started. This is not meant as a criticism of the police. It is unreasonable to expect that there will be an officer present whenever a random act of violence occurs.  In any case, when the shooting started, two private citizens ran to their cars and retrieved their firearms. They confronted the shooter, forced him to drop his weapon, and tackled him to the ground. He was eventually arrested and prosecuted.

However, the fact that private citizens bearing firearms had prevented further bloodshed was omitted in the media coverage of the incident. Following the familiar pattern, the government was given more power and private citizens lost more of their liberty. Stricter gun controls were enacted in Virginia. A few years later, with campuses forced by law to be “gun free zones,” the victims at Virginia Tech were powerless to resist.

Luckily, this latest incident in Arizona did not take place on a college campus, an army base, or any other “gun free zone.” The brave man who tackled the shooter in Arizona said that he was not afraid to do so “because I was armed.” More importantly, this was another example of private citizens defending themselves and their neighbors. The police arrived after the shooter was subdued and fulfilled their proper function in a free society – to arrest the person who had committed the crime.

The repeated failure of government to protect us from the uncertainties of life is not limited to violent crimes. Over and over again, we have looked to government to provide us with economic security and have been similarly disappointed. We sanctioned its war on poverty and got more poverty. We allowed its central bank to loot our wealth in the hopes that it would prevent recessions and inflation and we got more severe recessions and more rampant inflation. We let the government bail out corporations to save jobs and restore economic growth and we got higher unemployment and less new businesses.

As with personal security, our reaction is to reward these failures with more power for the government. More wealth redistribution. More power to the central bank (but I repeat myself). More bailouts. Consistent with the pattern, the only economic security we get comes from private individuals cooperating voluntarily with each other to create new products, new industries, and new opportunities for those seeking work.

In a free society, the government should never be charged with preventing anything. The very definition of the word “prevent,” when used in relation to government, is a repudiation of liberty. Since government is nothing more than the societal use of force, it cannot prevent anything without initiating force against the innocent. The whole idea that someone is “innocent until proven guilty” assumes that the government is not allowed to act until after a crime is committed. Force must be initiated by one party or the other. Until a criminal commits his crime, he is innocent. To apply force against him at that point is a crime itself. Moreover, since we do not know who will commit the next crime, the government can only attempt to prevent it by initiating force against everyone. This is the trap we fall into by relying on government to prevent hardship in our lives.

If liberty and the state can coexist, the state’s role must be a retrospective one. It must only be allowed to act when one human being has committed aggression against another. This applies to crime, economics, safety, and foreign policy. At one time, the United States did not go to war unless the president could convince Congress that direct aggression had already been committed against the United States. If you doubt that, read the requests for a declaration of war made by Madison, Polk, McKinley, Wilson, and Roosevelt.  Read the subsequent resolutions by Congress to declare war. In each case, those documents demonstrate the principle that military action by the government is not justified until aggression has been committed by the other nation.

This might prompt some to respond that in order to be free, we must relegate ourselves to being victims, or “sitting ducks,” able to act only after it is too late. This is a false assumption, rooted in a failure to recognize one undeniable fact of our existence. As far as the preservation and security of our lives is concerned, we are all on our own. No government, no matter how powerful, can assume the responsibility we each have to defend our lives and determine our own destinies. We can allow the government to rob us of our liberty, our property, and our privacy. We can create the kind of police state previously relegated to dystopian fantasies like 1984 or V for Vendetta. Even then, the government will fail – and then ask for more power as a reward for its failure. Must it come to that before we acknowledge the obvious?

Check out Tom Mullen’s book, A Return to Common Sense: Reawakening Liberty in the Inhabitants of America. Right Here!

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© Thomas Mullen 2011