Today In Fake Libertarianism

Joe Lieberman’s favorite op-ed page, approvingly quoted by principled, non-partisan libertarian Glenn Reynolds:

Let’s emphasize that again: The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs.

So did the success in Britain prove that legal constraints on executive power are incompatible with fighting terrorism, meaning that we must abandon the Bill of Rights and allow George Bush to have his unsupervised way? Happily, no:

Today’s fascinating Washington Post account of how a British-led team of investigators prevented the attack confirms his suspicion. However, it’s worth pointing out one key difference between the British way and the new American way of surveillance: Barring some unforeseen and massively scandalous revelation, British investigators, in all cases, have to obtain and comply with court-issued warrants for any surveillance. [ed note: according to Glenn Greenwald, these warrants are actually issued by the British Home Secretary.] This week’s counter-terrorism success should demonstrate how possible it is, and remains, for open-society to combat jihadism while preserving the rule of law.

In fact, let’s take that a step further. According to a U.S. intelligence official cited by the Post, some of the British terrorists placed phone calls to individuals within the United States. Whoever they called should very obviously be placed under surveillance. The FISA court would undoubtedly agree, despite Bush’s protests that successful counter-terrorism surveillance has to occur outside the restrictions of FISA. In short: counter-terrorism success, vigilance, the rule of law, and you–perfect together.

Not that this will stop conservertarians from happily going along with using terror as a pretext for pre-existing conservative desires to expand executive power, but…

…given how common it is, it’s worth identifying the obvious sophistry here. The strawman being propped up by the WSJ and Reynolds opposes various forms of “surveillance” as a general principle. But, of course, virtually nobody objects to such forms of surveillance given individualized suspicion and proper legal procedures being followed. Criticism of the administration is based on the latter issues, not because the administration believes (like everybody does) that one should engage in surveillance of suspected terrorists. More on this from Mona and Glenn Greenwald.