Safeguards Schmafeguards

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Introduction

I just finished reading Ball of Collusion by Andrew McCarthy, and what a grim treat that was.

McCarthy walks us through the entire Russia collusion story that has been wound tight around America’s news axle for the last several years, and explains what was going on in painstaking detail. And what was going on can best be described as high-level shenanigans. By this I mean monkeyshines among the principalities and powers, and they were the kind of monkeyshines that were far from sober, judicious, or legal.

In short, because Hillary was supposed to win the election and didn’t, and because all the colludery-type things Trump was supposed to be doing had actually been done by his die-hard opponents, and because now there would be no Hillary Justice Department to bury the bodies, and because the best defense is a good offense, we have been treated to three years of prosecutorial indignation, with noses in the air and everything. The self-righteousness with which the collusion narrative has been pursued has been thick enough to spread on crackers, not that you would want to.  

But the most noteworthy thing about this record of tawdry malfeasance, the dirty deeds done dirt cheap, the felonious and aforementioned monkeyshines, the highhanded pretentiousness, and then all the other stuff, is that McCarthy’s account does not contain any mention of any of the principal bad guys going to jail for what they manifestly did. This is because nobody from the ranks of the principal bad guys did go to jail. He didn’t record that because it didn’t happen.

Nobody. Mark that spot in your thought processes.

And there is a lesson in this for all defenders of the 4th Amendment, which will be quoted below in due course. Let’s get to it.

God-Given Rights

The rights that are outlined in the Bill of Rights are not rights that are bestowed by the Bill of Rights. In fact, one of the arguments used by the Federalists against including a Bill of Rights with the Constitution at all is that people might over time come to believe that these rights were positively bequeathed to us simply because they were mentioned in the Constitution. Although all my sympathies would have been with the Anti-Federalists, this particular argument had some force. People have come to think of it that way, and frankly, between you and me, they need to stop it.

We are endowed by our Creator with certain inalienable rights. We have not been endowed by our politicians with certain transient and tenuous quote unquote evanescent rights. God is the one who wants you to be free of unreasonable searches and seizures. To argue otherwise is to say that God wants you to live under tyranny.

Here so here is the text of the Fourth Amendment.

“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.”

Now as I write these words, the current director of the FBI has just apologized for the atrocious and mendacious behavior of the FBI in l’affaire Comey as it related to Carter Page, in their outrageous handling of the FISA warrants. The problem is that apologies don’t cut it.

When certain procedures, safeguards, firewalls, and policies are put in place, and then when they are circumvented by all the deputy director foxes running the Hen House Division, promises to reform these procedures in the future are promises that are entirely beside the point. We don’t need to reform the procedures, we need to figure out how to punish those who violated those procedures.

When the new guy promises an investigation, and to hold those responsible for the misconduct accountable, what this means is that nobody is going to be held accountable. What it means is that there will be a bureaucratic shuffle. Some will retire quietly, while others will enjoy the view from their new offices.

The old procedures were fine. The old guard was not fine. The old procedures were not followed. The old penalties for not following the old procedures were not applied. And so this tells us that when the new procedures are not followed, as they will not be, the new penalties will not be applied either and because why?

“Because the sentence against an evil deed is not executed speedily, the heart of the children of man is fully set to do evil.”

Eccl. 8:11 (ESV)

If you have a department full of hoodlums and miscreants, with binders full of good policies left over from the old days, and they circumvent all those policies for the sake of coddling their corruptions, and then they get caught, it will not do to have a personnel shuffle, and bring in a new telegenic face who promises us some telegenic reforms.

Nothing will change until “holding people accountable” means something more akin to “holding people accountable.”

After I wrote the foregoing, I read the news story that said that the person who had been tapped to help formulate the needed reforms at the FBI was David Kris, a staunch defender of the FBI’s treatment of Carter Page, and sharp critic of people like Devin Nunes, who has been the central hero in this whole sorry business. At one point, Kris even endorsed the idea of Nunes facing obstruction of justice charges. Nunes, responding to this appointment, said that it was “shocking and inexplicable.” Devin Nunes is a great man, and so I hesitate to differ with him at all in anything, but I really have to.

This appointment really is shocking, but there is nothing inexplicable about it. It is entirely explicable. The willingness of bureaus to cover the hinder parts of bureaucrats is one of the most explicable things ever. It would be better to say “shocking but entirely predictable.”

But . . . Lock Her Up?

This unconscionable and unconstitutional criminal behavior went all the way to the top. And this should remind us of a significant problem.

I have argued in the past that we ought to be very wary about backing into a system whereby we criminalize political contents—or even look like we are criminalizing political contests. When the consequence of losing an election is that you are going to go to jail, this could easily have the effect of making politics a whole lot dirtier. Yes, we want rats out of politics, but cornering the rats could easily make things, well, rattier. They might take to doing all kinds of things to avoid the dire consequences of losing. It is one thing to lose the presidency. It is quite another to lose the presidency and get sent up the river. Things are bad enough now, or so the argument goes.

Now if we took the ordinary law that ordinary citizens have to abide by and applied it to Hillary Clinton, then I am confident she would be in the slammer. And by rights a bunch of other functionaries ought to go to prison as well, you know, as in, et al. And these laws of ours really are applied, provided they are applied to some colonel in Afghanistan that nobody ever heard of.

Why don’t we apply them all the way up? After all, as the saying goes, nobody is above the law. Right, and that really should be the standard. But when people say that nobody should be above the law, what they mean is that nobody in the opposing political party should be above the law. Trump being hauled out of the White House in handcuffs is for one party an edifying thought, but to suggest that Obama could ever be charged is to launch an attack on the Republic itself. What is sauce for the goose is not sauce for the gander, although I hesitate to use such bi-categories any more. If anybody is not above the law, it would be me.   

The problem is that hard justice right after an election is a sure path to civil war, and will do far more to subvert our systems of justice than anything else we might do. However, not doing anything about wickedness in high places is completely untenable as well. Going back to Eccl. 8:11, when justice is not applied to situations that manifestly call for it, contempt for rule of law grows, and everything goes to pieces in a different way.

In the psalms, David repeatedly says that he banishes wicked men from his court, from his cabinet, from his circle of advisors. So there has to be a way to do this. We must find our way to that place.

But in the Meantime

So let us say that we hold back from routinely prosecuting the losers in electoral contests. That might be defensible, but in the meantime there is a price to pay. And here is the price tag.

There is no way that we should tolerate highly intrusive surveillance policies (Patriot Act, FISA warrants, etc.) when we have the kind of system that feels constrained to act as though certain players are “too big to convict.” We shouldn’t even discuss it. If all the players who are making the big decisions about national security and the privacy of our “persons, houses, papers, and effects,” are people who live above the tree line, then we must not grant them that authority. We must interpret the safeguards that they are pointing to as simply paper regulations that will be managed by people who will pay no significant price for violating them. Safeguards schmafeguards.

If you want intelligence services that can actually do the job of protecting us from international bad actors around the world, then you must show us how serious you are about this by protecting us from domestic bad actors in the upper echelons of the intelligence agencies. As Voltaire put it in Candide, perhaps from time to time we should shoot an admiral in order to encourage the others. A bit draconian, as the British execution of Admiral Byng was, but still one grasps the principle.

And until the intelligence community demonstrates its commitment to our safety to the extent that they figure out how to actually punish high-ranking malfeasance in their own ranks, our attitude toward any sweeping surveillance powers being granted to them should be “thanks, but no thanks.” Not only so, but all their current sweeping powers need to be taken away. If they say that this will leave America vulnerable and exposed, I would reply that we are vulnerable and exposed now, and nothing is being done about it. People talk as though they care about this, but nobody is acting like they care.

What are the odds that the Iranians have a file open on me and my written words, my musings and most cogent analyses about public affairs? And what are the odds that the FBI does? Do you think the odds are the same? So explain to me why I should be more worried about the former than the latter. And don’t tell me that the Iranians play dirty. I know they do. But I just finished reading a book that demonstrated, from here to Sunday and back, that the FBI plays dirty also. Now what?

And when the FBI plays dirty, and they are caught playing dirty, nothing happens.

Suspicious Minds

The American Constitution was put together by a convention of the kind of people that Elvis once sang about—suspicious minds. They assumed that they ought to construct the kind of government that, once the bad guys managed to take it over, would give those bad guys fits.

Here is what Madison said about it.

“It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? 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.”

James Madison, Federalist 51

Oblige it to control itself. Those are potent words right there.

And what will the reply be? It will be national security. And we need to say that we will start caring about that when the people in charge of national security start caring about it.