Libertarians & Civil Liberties

by Harry Browne

March 9, 2002

I recently received a letter from a Libertarian who believes that invasions of our civil liberties are necessary to defend ourselves against the terrorists. The following dialogue provides his opinions (indented, in quotation marks) together with my replies, edited only slightly:

"I agree that rights should not be compromised and that exceptions should not be made. I do not agree that all rights are created equal and absolute. The right to life and, by extension, the right to defend ourselves must take priority over civil liberties.

"Let me illustrate. We defend free speech. However, if a person were giving a speech and someone threw a brick at the speaker, we would shout, ‘Watch out!' We would to try to save the speaker from harm even though we interrupted the speech. If the right to free speech were absolute and inviolate regardless of context, we would be committing a breach of ethics to interrupt the speaker under any circumstances. But it would be ethical to save the speaker's life even if it means abridging freedom of speech."

"Freedom of speech" does not refer to any relationship between you and the speaker. "Freedom of speech" means that "Congress shall make no law abridging" the freedom of citizens to express themselves on any subject. It has nothing to do with your interrupting the speaker. Rules governing that are set by whoever owns the venue in which the speech is taking place — just as you can decide for yourself what can be said in your own home.

"Here's another example. A man should not be putting his hands on a woman without her permission. But suppose that a lady is waiting to cross the street and decides to cross against the light. A man behind her sees a car bearing down on her just as she steps in its path. If the right to be free of physical harassment were absolute, the man would be ethically bound not to grab her and pull her back to the curb. But he should help her. Why? Because her right to life supersedes her right to be free of physical coercion."

You do not impede the woman because she has a "right to life," but because you want to save her life. You will experience the consequences of your act. The woman may have been intending to kill herself, in which case she may hate you and malign you publicly ever after. Or she may thank you profusely for the rest of her life. In either case, you make the decision, you take the risk, and you experience the consequences of your acts.

To transfer such an example to government is completely inappropriate. Politicians do not suffer the direct consequences of their own acts — and rarely even suffer indirect consequences. When they pass laws governing how people must act on public streets, they never suffer themselves if the laws lead to terrible consequences. And to use the example of your hoping to save the life of a woman on the street as an excuse to allow politicians to violate the Constitution supposedly for our own good is wholly inappropriate.

The principal problem with these examples is that they are about individuals, while you're trying to draw conclusions regarding a nation. We are not a collective. What one person does with another is of no relevance when discussing what the government does to individuals.

The Siren Song of Dictators

"I ask you: Is it better to torture a suspect to prevent your city from being consumed in a nuclear holocaust or to respect his rights of person and due process and thereby suffer the incineration of a hundred thousand innocents and the creation of a nuclear wasteland? The rights of the suspect are not equivalent to the right to life of me, my family, my friends, and my community. It would be immoral not to try to force the suspect to stop the detonation even though it violates the suspect's civil liberties."

It is examples like this that have allowed tyrants throughout history to arrogate to themselves the right to torture, to suspend due process, and to ignore any tried-and-true rules of evidence in order to get what they want. After all, you don't want your city incinerated, do you?

And don't forget that anyone can be considered a suspected terrorist. Once you give the government the power to torture, you could be the next "suspected terrorist" to be tortured. Why not? Are you going to have a court trial first, employing all the rules of evidence to be sure that some law-enforcement official hasn't fingered you because of his incompetence? And what happens when it turns out that you weren't guilty at all? Who will face dire consequences for having made "an honest mistake"? And how will you put your life back together after a week of sheer horror and a maimed body?

"It has been said that our rights are most essential when our neighbors think we do not deserve them. I answer that, if my neighbors have good reason to think that I am trying to murder them, they should stop me even if that means violating my rights. My civil liberties are subordinate to their right to life. They are doing the ethical thing to defend their lives. They are placing their rights and mine in proper perspective. Life and defense of lives are the ultimate rights."

Once again, you are confusing your neighbors with the government. If your neighbors hurt you mistakenly, they will face direct consequences for their acts. To use this as an excuse to give unaccountable government officials the power to suspend your civil liberties (and there is no such thing as "accountable" government officials) is to go the way of the Soviet Union or Nazi Germany.

"I agree that if we allow our civil liberties to be subordinated to our self-defense, we will be in danger of all things being justified. We have currently before us a classic example of how the power-hungry try to feather their nests in the name of a worthy goal. In the name of campaign finance reform, incumbent politicians are trying to assure their re-elections by prohibiting paid political ads — a clear violation of free speech."

Then why don't you apply this principle to civil liberties? The politicians who are trying to ram campaign reform down our throats are the same ones who would have the power of life and death over you if you suspend the last effective elements of the Constitution.

Giving Them the Power to Do What They Want

"Government abuses and injustices will occur in the name of saving our lives. Those in power will sometimes be overzealous, dim-witted, inept, mistaken, corrupt, or ambitious."

Not "sometimes." Any power you give to politicians will inevitably be abused — if not today by the "good" politicians you give it to, then tomorrow by the "bad" politicians who will succeed them. As Michael Cloud has said, "The problem is not the abuse of power, it is the power to abuse."

"But is it not better to risk sliding down the slippery slope of allowing our government to infringe upon our civil liberties than to suffer terrorists throwing us off the cliffs and dashing us upon the rocks?"

Once on the slippery slope, when have we ever been able to climb back up to regain lost liberties?

"We must subordinate our civil liberties to our self-defense not only for the ethical and philosophical considerations above, but also because of practical considerations. First, it is clear that the fanatics who have attacked us will keep attacking until we or they are destroyed. I see no person or group who has the investigative or military capacity to stop them except our government.

And with $2 trillion at its disposal, our government has apparently achieved nothing. So what will the government achieve with $2 trillion plus our lives?

"We have not turned overnight into a Nazi or Stalinist state. The government has not suspended all our liberties and has limited the detentions and interrogations to suspects rather than condemning all those of a particular group or religion to internment camps."

"Suspects" are by definition people that government officials don't like. Couldn't you be one of them once we descend another couple of feet down the slippery slope?

It Hasn't Hurt Yet

"So far, the government's violation of our civil liberties has amounted to minor inconveniences for most and major disruptions for a few."

This is the way these things always begin. "I haven't noticed any inconvenience." . . . "If you have nothing to hide, you have nothing to worry about." . . . "Honest people aren't afraid of their own government." Eventually, everyone is inconvenienced, everyone has something to hide, and everyone is afraid of his own government.

"And I see ways that we as individuals can exert pressure on our government to moderate rights abuse."

This is another mistaken belief that makes it easy for government to grow — the idea that you can give politicians power and then draw a line at exactly where you think that power should end. But you won't get to draw the line, and the politicians' power will eventually be unlimited. That's why the income tax today is 39%, not the 6% it was at the start — why Social Security is 15%, not 2% — why every bank transaction is subject to government snooping, not just large transactions.

Why We Are Threatened

"I don't see how we can alter either the mind set or actions of those zealots who have been raised to hate us, who have devoted their lives to finding ways to destroy us, and who find their ultimate glory and fulfillment in our demise."

Here we come to what, in my opinion, is the most important issue in this entire War on Terrorism — the idea that we have no choice but to cede to our own government unlimited power to fight people who won't rest until they destroy us.

But there have always been thugs in the world who wanted to destroy others. There have always been people who hated America — for justifiable reasons or because they were loony. There have always been evil people, malicious people, brutal people. Why is it that only now do they represent such a grave threat to us that we must discard the last of what made America unique in all the world — the few remaining constitutional rights we possess?

The truth is that the evil, malicious, brutal people rarely have the ability to make any real trouble outside their own neighborhoods. The few exceptions, people like Adolf Hitler or Osama bin Laden, succeed only because they are able to get large numbers of people to support them — to provide the financing, the contacts, the networking and other resources necessary to cause noticeable trouble.

And that support comes from people who have been mistreated, as with the Germans after World War I — who had valuable pieces of Germany torn off and handed to France, Poland, or Czechoslovakia — who had all their foreign investments confiscated — who were told to pay astounding reparations, even though all their valuable assets had been taken from them — who were made to bear the entire guilt for a war they were only one part of.

Or the support comes from hundreds of millions of people around the world who resent American troops stationed in their country — who are appalled by the constant American bombing of Iraq — who have watched for 50 years as the Americans propped up dictatorial regimes in Iran, Saudi Arabia, Afghanistan, and other countries.

The difference between relatively harmless brutes and brutes who are truly dangerous is that the latter have been handed real grievances to play upon. They are still brutes, but they gain the support of honest, peace-loving people who have been pushed to the limit.

You will never be able to subdue all the brutes of the world, especially if you kill more innocent people in the process — because the very act of trying will arouse even more resentments around the world.

If you want to make the brutes relatively powerless to hurt us, you can do it only by taking power away from our politicians to interfere in foreign countries — not by taking away the last remaining rights of American citizens.

(Incidentally, I find it hard to understand how so many Libertarians could have complained so loudly about American foreign policy for so many years, but now seem to refuse to pin any blame on that foreign policy for what happened on September 11. And even if they do say now the foreign policy was wrong, they also say that America is justified in bullying the world now, because of what happened on September 11, even though the current bullying is an extension of the very foreign policy they condemn.)

You Can't Control Them

"Therefore, we must support our government to stop these assassins by whatever means necessary. I don't see how our government can effectively find and stop these killers without being able to control entry to our country, without having data about those in the country, without being able to detain and interrogate suspects, and without proceeding immediately and secretly on occasion to foil them. Some of these activities will necessitate limitations on our freedoms."

In other words, give people like Teddy Kennedy, Newt Gingrich, Bill Clinton, and George W. Bush a blank check — and then pray they don't abuse it.

"But we must not allow the government to do things in the name of our self-defense that are not necessary, especially if it means giving up our civil liberties. Our politicians are quick to grab power from us when emergencies arise and slow to return it when the crises pass. So we must closely monitor our politicians as they endeavor to win this war on terror."

Once again, you believe you will be able to draw the line — that you will be asked to determine what is "necessary" and what isn't. But you will never participate in such decisions. And as you "monitor" the politicians, what will you do when you see them crossing the line? How will you rally the American people to stop the abuse? If you know a way to do this, why aren't you using it to free us from the income tax, from Social Security, from the insane War on Drugs, and from other government abuses?

"One step that we might take immediately would be to insist that, whenever legislation is passed which grants emergency powers to our government, there would be an expiration date. I would propose that the term of such laws would be no longer than 4 years-one term of the presidency."

That's long enough to gain complete control of our lives.

"At the end of its term, if the law still seems sound and the emergency still exists, it can be re-enacted. If not, any powers lost to us under that law will automatically be returned to us. This is the exact opposite of what happens to us now. Long after emergencies pass or legislation stops making any sense, the law remains and the government indefinitely keeps the powers it took from us."

And you believe that, at the end of the 4-year term, you will be able to rally the American people to prevent an almost-automatic extension of one of these dreadful laws. If you have that kind of influence, why didn't you rally the American people to stop passage of the campaign finance reform that you thought was so disgraceful? 

Because you can't. And you won't be able to stop impositions on your liberty from becoming permanent — even if can be shown clearly that a particular imposition has achieved nothing. When has a government program been ended — no matter how destructive or unsuccessful?

In addition, you support taking away our civil liberties provided a 4-year time limit is attached. And who in Congress will see to it for you that the time limit is attached to new laws taking away our civil liberties?

I don't like to say this, but I believe you've fallen for the same pipe-dream that has deluded conservatives and liberals for the past hundred years or so. We are where we are today because citizens like yourself supported their favorite politicians as those politicians supported dangerous legislation, reassuring their supporters that the proposed legislation included valuable safeguards — and then the politicians compromised at the last minute to pass the dangerous legislation without any of the safeguards.

"Possibly, our current crisis can become a blessing in disguise. It is not just in the name of war that our liberties are infringed. With virtually every new law, policy, and court decision we are diminished. Hopefully, if we become conscious of not squandering our rights in one area, we can be moved to preserve and even enhance them in all."

Sorry, but I just don't see how we will preserve our rights by giving up more rights and then hoping people will help us get them back. This is exactly what Republicans have done — telling us they're for smaller government and proving it by making government bigger.

Once the liberties are gone, they aren't coming back. Liberty isn't saved by giving a blank check to those who want to take our liberties away from us.

I appreciate your thoughtful comments. I hope you'll continue to think about these issues.

With best wishes,                                

Harry Browne