Banking Program NYT correction

My July 2 column strongly supported The Times’s decision to publish its June 23 article on a once-secret banking-data surveillance program. After pondering for several months, I have decided I was off base. There were reasons to publish the controversial article, but they were slightly outweighed by two factors to which I gave too little emphasis. While it’s a close call now, as it was then, I don’t think the article should have been published.

Those two factors are really what bring me to this corrective commentary: the apparent legality of the program in the United States, and the absence of any evidence that anyone’s private data had actually been misused. I had mentioned both as being part of “the most substantial argument against running the story,” but that reference was relegated to the bottom of my column.

This weblog originally started as a civil liberties weblog. For those who don't know, it was originally called "iRights", and it's the projection of rights and civil liberties online that that referred to. I wrote my communication ethics essay(/book) and mostly got it out of my system and I haven't talked about it much.

But I still read about it and keep track of it, and I've also been keeping track of conventional civil liberties issues. And I've noticed something: There is an amazing disparity between where we thought we were going five years ago, and where we actually are.

People have been prognosticating total civil liberty doom and gloom for years now. There are even people who seriously worry about Bush somehow cancelling an election or refusing to leave office. And yet, none of the doom and gloom predictions have occured. I can only find isolated examples of governments overstepping their bounds; no systemic pogroms, no large-scale roundups, just normal outlier stuff.

The fact is that civil liberties the United States are pretty much the same now as it was in 2000. The only systematic changes I can think of off the top of my head are:

• Airline security is tighter. Many of the isolated excesses occurred here. It's been a while since I heard a story about one of them, though, especially if you don't count a brief reaction to the British plot.
• Free speech zones are mostly a bad idea. They predate 2000 according to Wikipedia but they've certainly been more frequently used these past few years. I say "mostly" a bad idea because to the extent that the people bitching about free speech zones are complaining because they aren't being allowed to disrupt somebody else's speech (which is certainly the motivation of some protesters, though I'm sure not all), free speech zones are protecting the speech of the targets of the protest.
• I've heard of some Patriot act abuse, but it's mostly been in the form of using Patriot act anti-terrorism provisions in common criminal investigations. Something to be watched, but hardly incipient totalitarianism. Not even particularly unique; investigations overstepped bounds before the Patriot act and they would even if it were repealed completely.

Conspicuous by their absence are "libruls" being rounded up into camps, people being "disappeared", a pattern of speech suppression, or any number of other things continuously prognosticated for six straight years. You can find isolated examples, but any claims of systematic suppression needs to explain why you can still get to the Daily Kos and any number of other high-profile sites that would be downright trivial to shut down.

The fact is that if you step back and look at the facts, the government has been restrained and disaster has not occurred.

An obvious counter-argument is that people have pushed back against power grabs, but I'd point out that's the system working as designed. And it still leaves us with teh ev1l Bush being miles away from Dictator-For-Life.

We still need to be vigilant because power grabs of all kinds, no matter how small, have a way of becoming permanent. We need to be vigilant because lack of significant abuse today isn't a promise that abuse will remain rare in the future. But we don't gain anything by basically making up the idea that the Bush administration is somehow uniquely after our civil liberties, with the primary proof being "any accusation against Bush is automatically true".

The actually-interesting civil liberty stories of the past few years have had nothing to do with Bush or his administration or even national security. One true civil liberty story is the Kelo decision, and the rather remarkable and almost universal rejection of that decision in any number of state and local legislatures. Eminent domain abuse continues, but it has almost certainly been significantly curtailed. (I say "almost certainly" because I have no cold, hard facts, but given the number of anti-Kelo laws that were passed I can't imagine they all had no effect.) The gun confiscation in New Orleans for no good (Constitutional) reason. (Even if you are pro-gun control, you should be in favor of attaining more gun control through legal means; you shouldn't be in favor of some cops somewhere simply deciding to take away a right, even if you happen to have agreed with this particular one.) Speaking of cops, there's the story about cops arresting people for taking pictures of the cops and no other reason.

As for the isolated cases, we should talk about them and decry them and make a fuss, because that's how we keep them isolated. Covering those stories is good. But you shouldn't be fooled into taking a few isolated cases and believing they are some sort of significant trend.

Even if horrible things started happening tomorrow, there would be a window during which all kinds of "Hey, all my friends disappeared!" stories would appear on Kos and thousands of other such sites. They aren't there. And getting back to the quote that started this whole post, if even the New York Times can't dig up evidence of Administration abuse of a particular program, I submit that the odds are pretty good that there wasn't any (to speak of).

You can believe a lot of bad things about this Administration with much reason, but the idea that the Bush administration is some sort of unique danger to America's civil liberties isn't reflected by the evidence.

(Personally, I don't think very many people really believe it, either; they'll claim to be all kinds of scared and nervous but their actions don't reflect it. People seem pretty confident about and comfortable with posting anything and everything about Bush, secure in the solid knowledge that it will never come back to bite them. Sure, some people would still post even in an abusive regime, but the evidence from countries where free speech is actively suppressed shows that we wouldn't have this freely-available torrent of negativity from all kinds of people.)

And I'll close with a further restatement of my point, which is not "Everything is peachy!", but that people have been prognosticating the worst imaginable doom and gloom for years now, and the predictions have simply not come true. Nobody was predicting "Bush is so evil that over the next four years a couple of protesters may accidentally be placed on the do-not-fly list!", they were predicting a police state.