Freedom Under Law

Last night the Senate failed to advance an extension of the Patriot Act’s Section 215. Rand Paul objected to Mitch McConnell’s efforts at passing any short-term extensions and suddenly it looks like the legal authority for the Patriot Act’s phone metadata collection program may actually expire June 1st.

“There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now, and I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged.”

So said Rand Paul at the outset of his 11 hour pseudo filibuster on Wednesday, and it’s hard not to be moved by the language. If there is a quality I admire most about the Senator from Kentucky it is his maniacal obsession with restoring checks and balances to our government. In order to have any success at reining in executive power the public must first agree with the premise on which the reform rests. If you’ve paid attention to Paul in the Senate you know the thread that runs through his speeches and through his marathon performances on the Senate floor is the separation of powers. Drones and NSA spying were not background concerns per se, but neither were they the true focus of the filibusters. At root is a fundamental objection with the flagrant expansion of executive power under every administration since World War II, but especially since 9/11.

Why are separation of powers so important? To hear Paul tell it, the sanctity of divvied powers was best championed by French philosopher Montesquieu, who warned that tyranny would ensue whenever the executive moved to legislate. Likewise, separating the judicial branch from both executive and legislative was imperative for the security of habeus corpus and other natural liberties. Embedded in small government philosophy is a staunch suspicion of planning and expertise, a wariness born during The Enlightenment and which reflected the conflict between the regal old guards and the new class of individual-minded bourgeoisie. For eons the word of the state was the final word on society; decrees from on high carried down to the masses for them to follow. However, the individual conscience rights that began taking shape in the Middle Ages became more widely disseminated during the Renaissance and Enlightenment. With the expansion of knowledge and individual agency the feudal system gradually gave rise to market economies fueled by spontaneous order. The consequent loss of power and influence for the aristocracy was a product of capitalism providing the vehicle for political participation by ordinary folk. Schumpeter’s insight that “the princess was always able to wear silk stockings, but it took capitalism to put them within reach of the shop girl” put the lie to the Marxist conceit that free enterprise would destroy the middle class. Voluntary exchange under a legal framework that respects the individual and cherishes his right to profit from his own labor is what created the middle class.

As the Western world moved methodically toward social appreciation for the citizen’s sovereignty over the state, the question of democracy became crucial: how to organize a free society of, by and for the people when for so long power and authority were hereditary and monarchical? Fortunately the British and ultimately the Americans did not need to hunt for a guiding principle. We already got one and it’s embedded in Magna Carta. The great charter signed at Runnymede marks its 800th anniversary this year and yet remains relevant as ever. Habeus corpus, jury trials, property rights and a common law that precedes and preempts man-made law; these natural rights discovered by our English forebears provided the blueprint for the individual based free society. They also declared for the first time in history real restrictions on the power of the state or king, which would prove a launching point for our founders as they set to establishing a government that would pit ambition against ambition as a means of separating and counterbalancing the powers of the state. The best encapsulation of this radical vision for upending centuries of authoritarian rule is inscribed on the monument commemorating Magna Carta: “freedom under law.”

Freedom under law is what the entire debate over NSA and executive power overreach is all about. National security state defenders will often say there’s no evidence of abuse currently and besides, don’t you want to be safe? But that is not the point. The point of a freedom secured by law is that the law is the law, and it is supreme. John Adams said we strove to institute a “government of laws, not men.” When executive authority runs afoul of the law it is supposed to be a big deal. When successive administrations of different parties expand executive power to the degree that natural rights are abused, it is supposed to be a huge deal. But in the name of fighting terror and keeping the country safe the Bush and Obama administrations have treated the 4th amendment like so much garbage.

In attempting to take Rand Paul to task Andrew McCarthy of National Review runs the gamut of talking points before insisting that “the depiction of national-security agents who are trying to protect American lives as seventies-style rogues tearing the Constitution to bits is a smear.” But Paul is not doing that; instead he is arguing that the Patriot Act and its especially problematic provisions open the door for abuse at any time. It may not be now, or in the next administration or the next but the point of freedom under law is that we eliminate this risk altogether by forcing fallible men and women to swear oaths to uphold and defend the Constitution. The founders were explicit about making the law supreme and they further divided power to guard against the transient passions and fears that inevitably come to challenge man and his commitment to law. As challenging and daunting as it is, the jihadist threat of modern times is exactly the kind of passionate, fearful moment in time the founders knew would inevitably materialize. If they knew that only two hundred some odd years later American political discourse would include such penetrating insights as Chris Christie’s you can’t enjoy your civil rights from a coffin, they would have folded up shop and abandoned the revolutionary project full stop.

The Patriot Act is what happens when laws are passed out of fear instead of sober deliberation. Freedom under law was always meant to keep that from happening, like the abstract, intangible version of standing athwart history yelling stop. The founders knew too well the propensity of man to govern arbitrarily; thus the principle aim of the new republic was to build a system that takes arbitrary and consolidated power out of the equation and lifts the Constitution up as the final arbiter on what government can do.

Bring Back the Despots

Let me state this at the outset: foreign policy is hard.

It is particularly hard for libertarians and non-interventionists when global conflagrations are on the rise, as they are today. So I don’t pretend to have the answers. Better to profess ignorance than to claim to have all the knowledge. Someone once called that wisdom.

When an awful atrocity like the beheading of an American journalist occurs and is broadcast proudly, tauntingly to the world by the barbarians who comprise the Islamic State, it is tempting to cast the the absurdly complicated conflicts of the Middle East in black and white, good vs. evil lines. No doubt, ISIS is evil. Basic human decency and threads of common morality running through disparate cultures are in accord with the need to confront this type of evil directly. In times like these, emotion almost always prevails over sobriety, and here the appropriate emotional response is likely the visceral one.

And I am not even going to say that sobriety should necessarily prevail here. My instincts upon hearing of the beheading of James Foley were to unleash holy hell on militant jihadists the world over and to rigorously condemn the global obsession with “multiculturalism,” the phenomenon which undoubtedly provided the space for such an absurd circumstance as a British citizen’s decapitating an American civilian on YouTube to materialize. By encouraging large quantities of Muslim immigration and requiring little to no assimilation in host countries, the EU and UK have created pockets of Muslim populations in Europe who do not see themselves as European or Western, and are quick to revive tendencies such as anti-semitism. The predictable results of un-assimilated populations experiencing poverty from their preferred atomization from western society is what we’re seeing today: thousands of European and British citizens flocking to Syria and Iraq to join the cause. This is maddening, and makes one want to do something about it. And yet, once the emotional rage subsides, as it inevitably does, it behooves us to consider the broader implications of whatever retaliatory measures we select.

It is beyond ridiculous that the great existential threat to human decency of three years ago – Bashar Assad – is now poised to be our great ally in the existential fight against ISIS. Likewise with Iran, who will undoubtedly launch a pseudo invasion of Iraq if ISIS manage to conquer Baghdad. Your average western citizen could be forgiven for suffering from a major case of logic whiplash: recent history has preached the necessity of confronting the evil of Iranian hegemony and the specific threat to global freedom that would entail should they acquire nuclear weapons capability. Even more recently we have been told that Assad “needs to go” because he was a vicious and evil dictator prone to the comprehensive abuse, torture and murder of his own people. And before we found out about the immediate threat to our way of life posed by ISIS, we endured the spectacle of Russians on the march.

The same voices that wished us to intervene on behalf of “the rebels” to counter Assad’s vicious brutality in Syria are now admitting that we in fact require the Assad regime’s assistance in confronting ISIS. What I take from this is that it’s best to not rush to judgment about who the good and bad guys are in a cauldron as unpredictable and volatile as the Middle East. The more difficult takeaway is the one nobody likes to verbalize, yet everyone is beginning to understand to be the hard truth: that as long as the Middle East is engulfed in a vicious Sunni-Shia civil war (going on 1300 years now) and religious doctrine that (for whichever of the numerous reasons) breeds only contempt for western values and economic prosperity, the only bulwark against chaos and anarchy is despotism.

It feels vulgar to even express this sentiment, but the Middle East was simply less volatile and less of a threat to the West (and really, even to its own people) when it was largely governed by despots and tyrants. Saddam Hussein, Hosni Mubarak, Bashar Assad and Moammar Qaddafi were/are terrible human beings who abused their own subjects, but they were also effective corks on their respective nations’ bubbling discontents. Remove the corks, as the United States did in Iraq and Libya and the Arab Spring served to do in Egypt, and the resulting vacuum is filled not by democratic pluralists but by fundamentalist Islamists. I think we have enough evidence now to conclude this to be more than a trend. It is an inescapable reality.

I think the only thing that can heal the Middle East in the long run is the injection of some Deng Xiaoping style market reforms, so that those subjected to such violence and suffering can instead have a little wealth and prosperity. But until the Middle Eastern Milton Friedman emerges, the only way to stop the madness over there, unfortunately, is to bring back the despots. I wish it were not so, but it is. In the meantime, I think the responsible non-interventionist position is to continually highlight the perils of even trying to figure out which rebels are “good” or “moderate” and to discourage emotional reactions that lead to irrational commitments to nation building or other general efforts at imposing order on a permanently disorderly part of the world.

Ultimately, when it comes to the Middle East our position should heed the wisdom of Socrates and admit the truth: “we know nothing.”