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When Law Fails - the Patriot Act and Intel
Wiretap Debate Explained
A friend
on the mission field and I recently had a long talk about
the Patriot Act that really got me thinking and I wanted to
share with you what I learned.
At
least since the 1950s, the U.S. has had to conduct domestic
counter-espionage activities. The defining characteristic of
this activity is that often it is vital to national security
to keep the evidence that proves someone is guilty - or the
methods used to collect that evidence - secret.
To
deal with this problem, Congress struck a compromise between
the constitution's concerns that 1) there be real evidence
to prove someone is guilty and 2) that evidence be collected
using warrants, which keep the government from going into
anybody's home or effects on a fishing trip - in the Foreign
Intelligence Surveillance Act (FISA) of 1978.
To
get a warrant, you have to have "probable cause." That is,
you have to have facts that create a reasonable probability
that a crime has been committed and that the person whose
house, papers, or phone calls the government wants to look
at committed the crime.
Therein
lies the rub, spies - and terrorists - try very hard not to
create any probable cause to suspect them. FISA deals with
this problem by allowing the government to get warrants in a
special court - the FISA court - using evidence gathered
through intelligence. The FISA court is just like any other
federal court except that all the people working at the
court have clearances and the court has the physical
security necessary to protect intel info. But terrorism adds
a new wrinkle to the problem, one that is not present in
normal law enforcement.
The
purpose of government is to protect the rights of citizens.
The government protects our rights by enforcing man's law.
"Rights," after all, are simply conduct the law will
protect.
Law
works by putting costs on certain behavioral choices. For
example, if you steal and get caught you may have to return
the stolen goods, pay a fine, and go to jail.
True
human rights come from God's moral rules - for example, from
the commandment don't murder we get the right to life - so
in a nation where the majority of citizens are Christians
the law should follow God's moral laws.
But
all this breaks down in a nation where the majority are not
Christian, or where even a significant minority are Muslims.
When the majority are not Christian, the law will deviate
from God's moral law - like by allowing abortion, wealth
redistribution, or homosexuality. People will lose rights
and be less well off than if the law did follow God's law.
When even a significant minority are Muslim, the law
completely fails, and it becomes impossible to both protect
citizens from terrorism AND protect citizens from
warrantless searches.
It
becomes impossible, that is, unless you take into account
one key fact, which you will probably realize for yourself
in just a minute.
The
Patriot Act expanded the government's ability to fight
terrorism by allowing the government to get a warrant based
on evidence not gathered by intelligence sources - i.e.,
gathered from domestic surveillance - and to keep that
information secret. Recently, President Bush ordered
wiretaps without seeking FISA court approval - as presidents
did up until 1978 when FISA was passed.
Why
would he do that?
The
answer lies in two facts. First, the people we are fighting
the War on Terror against are Muslims, they read and believe
Koran and Hadith, the authoritative documents of Islam.
Second, law is useless to stop terrorism. Muslims who commit
terrorism do so because Koran promises them that the only
way to be sure to go heaven is to die fighting in the cause
of Allah. The costs the law can impose - fines, prison, even
death - are not large enough to stop terrorists, because
they believe that they will earn the infinite benefit of
heaven through their terrorism.
The
only way to stop Islamic terror - using temporal tools - is
to detect who might engage in terrorism and arrest them
BEFORE they have a chance to do it.
This
is why President Bush cannot protect us from terror and
comply with the FISA court warrant requirements. What facts
are the government using to decide it needs to wiretap
without first getting a FISA warrant?
Obviously,
it must either 1) have a situation that is so urgent it
can't wait for a warrant, or 2) be making the decision to
wiretap using facts on which the court would not normally
grant a warrant.
What
facts could those be?
Since
terrorists read and believe Koran and Hadith, the government
must be deciding to wiretap based on who has suddenly
started reading Koran and Hadith, or attending a
known-radical mosque.
Why
wouldn't the court grant a warrant on these facts? Because
most Americans - even judges - still buy the lie that Islam
is peaceful. They think there is a constitutional right to
be a Muslim in the U.S.
Well
isn't there?
No,
18 U.S.C. section 241 - quoted at the bottom of our homepage
- makes it a crime to conspire to deprive citizens of rights
guaranteed by the constitution or federal law - like your
life and your property. That is exactly what terrorists do -
and what Koran teaches.
So
here's the bottomline. If we allow President Bush to conduct
warrantless searches we open the door for abuses that other
Presidents - or bureaucrats WILL commit. Imagine if Hillary
was president! After all, FISA was passed in the wake of
President Nixon spying on the anti-Vietnam war movement. The
fact that these folks were a bunch of communists didn't
matter.
On
the other hand, if we don't allow President Bush to conduct
warrantless searches we WILL experience terrorist
attacks.
What's
the alternative?
There
are two. First, this problem came about because we allowed
people into our country who hurt others not because they
think it will make them better off in the hear-and-now, but
because they think it will get them to heaven.
Islam
teaches a set of moral rules very different from the God's
moral rules that create our rights. Consequently, law based
on Judeo-Christian moral rules will not work to stop Islamic
terrorism - it will deter some terrorist at the margin but
it will not stop true believers in Islam
completely.
It
was for this reason that John Locke, in his writings on
toleration, distinguished moral beliefs - what is right and
wrong - from what he called "speculative beliefs" - beliefs
about what type of worship was pleasing to God. Locke
pointed out that the only thing necessary for men to live
together in peace is agreement about what is right and
wrong. People can worship God in any way they pleae provided
they don't disagree on moral rules. Locke supported
tolerance of all Bible-based religions, but denied tolerance
to Catholics, on the grounds that their allegiance to an
infallible Pope could cause them to follow moral beliefs
that did not come from the Bible.
In
Scripture, John calls those who deny Jesus false teachers
and antichrists, and commands believers not to even take
them into their houses. See 2 John 1:7 and 1:10.
The
first alternative is that we not even allow Muslims into the
U.S. We could tie entrance to the U.S. to the granting of
freedom to own Bibles or teach the Gospel in Muslim
countries. But this practice would only be possible if
almost all Americans were true Christians.
Short
of this, we could do as President Bush seems to be doing,
and treat any person who appears to be becoming a devout
Muslim as a potential terrorist. This is the key fact the
court could begin to take into account which would make it
possible to protect non-Muslims from terrorism and
warrantless searches.
The
second alternative is that we realize we are, as Ben
Franklin warned, trading liberty for security, and will get
neither, because both require that citizens follow God's
moral rules.
We
will have to muddle along like present-day Israelites,
waiting for the next terrorist attack. But we can do
something, we can try to change what Muslims believe about
how to get to heaven.
We
can witness to them.
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