July 23, 2004
Heart of the Matter
July 23, 2004 12:43 AM
I entirely agree with Prof. Kerr's comment here regarding the accuracy of the ACLU Flash movie's depiction of a Matrixed America. In accordance with their customary practices, the ACLU is freaking out somewhat disproportionately to the actual problem. The information displayed in the Flash film is unlikely to be gathered by the government.
However, the crux of the ACLU's concern with the Matrix program -- the sentiment behind the cartoon -- remains: the sharing of information between private sector entities and the government. There was and is similar concern about the sharing of information between terrorism-preventing departments and "regular" law enforcement.
While many Americans may be puzzled as to why this would be problematic -- why shouldn't the government know my credit rating? my future landlord does -- the ACLU appears to be concerned that this represents a step down the (you knew it was coming) slippery slope of information flow between commercial entities and public authorities. After all, if Sam's Club sent the receipts of purchases made with "business expense" cards to the IRS, I suspect the latter could nab a lot more people for improper tax accounting. Which brings up a consistent theme of the ACLU's response to the expansion of government powers and programs post-9/11, that all such expansions must have a strict relation to the prevention of a terrorist event, and not be utilized to catch non-terrorist criminals.
Although your synthesized statement of the ACLU's view that "all such expansions must have a strict relation to the prevention of a terrorist event, and not be utilized to catch non-terrorist criminals" certainly is as sonorous as other great rules, e.g., "that level of care exhibited by the reasonable prudent man under similar circumstances," it admits of less precision. This is due primarily to two things: (1) the nature of terror; and (2) the identification of a lack of fluidity in law enforcement methodologies and communications as the principle barrier to successful progressive protection of our domestic peace. I'm not saying the ACLU is wrong, in fact they make some important gadfly criticisms. But I do think the problem is much more complex.
On a side-note, your own blog quotes a very statement by Joseph Joubert: The aim of argument, or of discussion, should not be victory, but progress. I've tried not to think too much about that quote, however it is perplexing. Of the possible aims of argument progress does not come to mind as the least base or the most virtuous. In fact, it may mean nothing more than "moving forward," in the sense of avoiding Abbott and Costello's "Who's On First" scenario. It's not Mill's truth-from-open-discourse, it's not the impliedly base argue-to-defeat-opposition-argument, it's not the Greek demos-agagos-play-it-up-and-argue-to-get-audience-praise; what is it?
UPDATE: (2) has been identified as not only the principle but also the principal barrier! ;-)
Re: the ACLU, I think they are concerned that Americans will grant expanded government powers under the aegis of Fighting Terrorism that will be used to fight crime that we do not generally regard as Terrorist. For example, the "Animal Liberation Front" is classified as a domestic terror organization. While I'm sure the mink farmers like this, the majority of people probably don't regard the ALF as "terrorist."
And this example demonstrates your point; there is a great deal of vagueness and uncertainty in these matters, and while the government appears to see its job as expanding the meaning of "terrorism" and their powers in fighting it as much as possible, the ACLU strives to keep the definition narrow, close to that of the 9/11 attacks, and the expansion of powers tied closely to the purpose of preventing similar tragedies.
Re: Joubert quote, it's one for which I have a long-standing fondness, and I think Nick tried analyzing it a bit once. The meaning I have taken from it is that while argument can be fun as sport, it also should be taken seriously, as a pursuit with a worthwhile goal. Outside formal debate, that goal should not be to "beat" an opponent, but to advance understanding (one's own as well as one's opponent) and ideally to reach a position in which facts have been hashed out and agreed upon, and any remaining differences of opinion depend on differences in value systems and other subjectivities, rather than on different understandings of reality.
In the discussion we are having now, I am striving to clarify my meanings and provide illustrative examples, so that any disagreement will be due not to my muddy writing in this post, or to the glibness of the Joubert quote, but to a genuine incompatibility in priorities, preferences, etc.
Re the ACLU: I agree with your assessment of what they are trying to do. I just have serious concerns as to the correctness and viability of their approach. This will sound odd, but their end is the protection of civil liberties. It is not the protection of a people from terror. Thus, when detached from rhetoric, I feel that their approach falls prey in its lack of direction toward both ends.
Re Joubert and progress: Sounds good. You must agree that it admits of some ambiguity.
Reflexively, I've always sympathized with the ACLU with regards to most of their work. Almost surreally, to me anyway, I've recently come to think that if more direct sharing of Sam's Club receipts with the gov't agencies busts more tax cheats, I'm not going to lose any sleep over it. If you break the law and the gov't is aggressive (but within the bounds of existing law) in the investigation and prosecution of your wrongs, I don't see the point in societal discomfort. To the contrary, I'd praise the system as mature and well-functioning.
On the other hand, I sympathize with many activists and defenders of unjustly oppressed underdogs everywhere. I'd prefer altogether forgoing the prosecution of many of them. Likewise, I don't like the idea of furthering the power of law enforcement with regards to the persecution of these same.
So, here's the rub. Do you support the expansion of gov't power to enforce the rules your elected gov't has passed? By what logic would you not?
My initial take? You've got to urge the repeal of any laws you find unsavory. For laws that remain, society should press for the greatest enforcement power allowed under the existing constitution and body of law.