NATCHITOCHES, La., November 22, 2011 — The exchange between Newt Gingrich and Ron Paul on the Patriot Act highlights an important difference between civil libertarians and national security hawks. The former emphasize that if you start to sacrifice liberty for security, liberty can be lost. The latter emphasize that the Constitution is not a suicide pact.
Gingrich argues that criminal law mainly deals with crimes after they’ve happened. National security policy focuses on preventing attacks on the United States. Hence he concludes that different rules are required for these different government roles. We should retain all our constitutional rights in criminal matters, but they can be infringed if the government believes we’re involved in a plot against national security.
The threshold that divides the two isn’t clear. The “24 scenario,” the nuclear bomb in an American city, was raised as a reason to aggressively bend constitutional protections, but between that and simple assault there are unlimited options for violence. There’s no clear threshold between ordinary and national security crimes, the difference being one of intent, not scale.
This makes simple rules of when to bend the constitution and when not to almost impossible. Like pornography, we might be able to identify a national security threat when we see it, but defining it ahead of time isn’t easy.
It’s much easier, as Paul does, to create an absolute standard: The Constitution’s Bill of Rights is the law, no matter what the threat to Americans or the state.
The constitutional approach that Paul advocates doesn’t require the government to be entirely reactive. As he pointed out, it was pretty straightforward to capture, convict, and execute Timothy McVeigh after the Oklahoma City bombing, but it’s absurd to think that we have to wait for a mass murder to happen before we do anything about it. Even regular law enforcement attempts to discover, infiltrate and stop criminal conspiracies before they cause major damage.
However, if the Constitution can be bent in the name of national security, the only limits to how far and how often it can be bent are the integrity and good sense of government officials. If we believe that government officials are always honest and sensible, we have little reason to fear government power to bend the Constitution. But the Bill of Rights exists because the framers knew that power corrupts and that we aren’t always careful of rights.
When Michele Bachmann argued that we don’t read terrorists their rights, she made an implicit argument that the Constitution is only for people who deserve it. She should recall that people on the left have casually used the word “terrorist” against Tea Party activists, and even some journalists equated the GOP hold-up of the debt-ceiling increase with terrorism. That was hyperbole, of course, but the definition of “terrorist” can be twisted as far as we’re willing to twist it. If the Constitution doesn’t protect bad people, it doesn’t protect good ones.
To give government officials the authority to bend the Constitution because it’s in the national interest is asking for trouble. Paul perceives this correctly. But Gingrich perceives something correctly, too: If there is no United States, the Constitution is a quaint and dead historical document.
The argument here is that the Constitution is the basic law of the land, and no law should grant anyone the authority to bend it. Our official stance must always be that everyone in this country at all times has all protections provided by the Constitution. There should be no exceptions.
If the “24 scenario” were ever to play out, authorities should break the law. They should do anything necessary to preserve this nation, however unconstitutional. And if their actions are illegal, they should be fully prosecuted for them. No one who isn’t willing to do whatever it takes to preserve this country has any business being president. No one who can’t then stand in front of the judiciary and the people to take responsibility and accept any legal penalties has any business being president.
The differences between the candidates on this issue was better illustrated by the exchange on drug violence on the border. Ron Paul sees this as stemming from a misbegotten and disastrous war on drugs. Herman Cain sees it in national security terms.
As Paul pointed out, alcohol is a far more deadly drug than any of the drugs we’ve made illegal. The war on drugs has curtailed civil liberties, consumed vast resources, corrupted societies and politicians, and all to no gain.
If drugs are a national security issue, then it really doesn’t matter, we should continue to do what we’re doing. But why are they a national security issue? Because the violence associated with them has made it so? Legalize them, and the profits go away, and the money that feeds the drug cartels dries up. Treat drugs as a rights issue and the war on drugs goes away. Treat them as a national security issue and they remain a national security issue forever, the force behind a perpetual war with perpetual casualties, and among those casualties, civil liberties.
Tonight’s debate highlighted fundamental differences between the candidates, and it was both interesting and instructive. The strongest differences remain those between two of them, Huntsman and Paul, and all the rest. Gingrich is a clear voice for subordinating everything to national security, Paul a clear voice for subordinating everything to the Constitution. Which you prefer depends on whether your preference is for liberty or security. We needn’t go all the way in either direction, but the tradeoff between them is clear.
James Picht is the Senior Editor for Communities Politics and teaches economics at the Louisiana Scholars’ College in Natchitoches, La., where he went to take a break from working in Moscow and Washington. But he fell in love with the town and with the French professor, so there he stayed. Now he teaches, annoys his children, and makes jalapeno lemonade. He thought he’d be tired of the debates by now, but they’re starting to grow on him. He tweets, hangs out on Facebook, and has a blog he totally neglects at pichtblog.blogspot.com.
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