Sometimes the Government is Right

It was perhaps the most frustrating moment I can recall that didn’t involve a conversation with my ex-wife.

I was sitting in my second year Criminal Law class, listening to my professor describe what he called the “Jack Bauer” hypothetical to the class.

Law school was all about hypotheticals, but most involved identifying and addressing very specific issues. This one, which gets its name from the famous protagonist of the popular TV series 24, was anything but discreet.

“You have a terrorist in custody. He’s killed before, and has stated publicly that given the chance, he’ll kill again. This time he got caught, but not before planting a portable nuclear bomb in the middle of some American city. You can extract the information from him forcefully, but you’ll need to torture him. Do you do it?”

Of course, Jack Bauer wouldn’t hesitate. He’d take a spoon or whatever else was handy and do whatever he needed to get that information out of the terrorist and save the day.

My classmates, however, the future lawyers, policy makers, and politicians of this nation, didn’t find the situation so simple.

“How many people will die if we don’t torture him?” somebody asked.

How many, I thought to myself… Why was that even an issue? This man, an unapologetic murderer, doesn’t have human rights anymore. His intent is clear: to kill.

If his actions are going to harm a single person, he should pay the price.

And then came the real kicker. A young woman at the back of the class raised her hand, and with one smug eyebrow raised, stated: “If we’re looking at over 100,000 deaths, I’d do it. But no less.”

100,000 innocent lives… That was the price of compromising an ideal to a person who had never had to make anything close to a life-or-death decision.

The Bill of Rights Doesn’t Apply to Animals

It was at that point that I checked out of the conversation and went back to surfing the Internet. These people didn’t deserve to be lawmakers. They didn’t deserve to be in law school.

If they’re willing to allow a confirmed mass murderer to strip away the right to life of scores of innocents all for the sake of upholding some sort of inflexible, impractical ideal, then we don’t even need attorneys. We can just feed every such scenario into a simple algorithm and let it decide what to do.

My teacher for that class felt my pain.

I learned this the following year, when he taught my terrorist law seminar — a very small, discussion-focused group dealing with a very new and very controversial area of the law…

How to deal with terrorists.

In that class he posed another question: “What do you do with all those prisoners in Guantanamo?”

Some may have been innocent, but most of them definitely weren’t. You can’t just release them.

This was a question with nuance, and yet, once again, the class, dominated by 21st century liberal ideology and values, found nothing but cut-and-dried responses.

“Buy them all tickets to wherever they want to go and send them there,” answered one student, even though it had already been proven that previously released detainees had in fact gone on to kill American troops in Iraq.

“We need to give them citizenship and pay them reparations for detaining them,” answered a girl sitting to my left.

The professor let the class talk and talk for most of the 90-minute session. That was what he always did — start a debate and allow us to talk without injecting his own opinions.

Want a Sane Answer? Ask Somebody Who’s Been in the Trenches

The ironic thing was, his opinion was one of the most informed and important opinions on this matter in the world.

A former Marine and CIA commander, he had worked for the government through his early 30s before going to Harvard Law for his JD.

He’d been in the war as a soldier and as an intelligence officer. When drones hit targets in faraway places, it was likely that he gave the go-ahead.

As the class wound down, he did what he’d never done the whole semester. He finally offered his own opinion.

“This is what I would do,” he said. “I’d surgically implant a GPS tracker into each and every one of them and let them go home. Give them a few weeks to get back to wherever it was they were doing, and then drop a JDAM on each one of them.”

There was an audible gasp from the class as every one of the rosy liberal clouds suddenly turned gray.

People wanted to respond, but unfortunately, they would never get the chance. It was the last class of the semester. It was the last class of our law school careers… and whether they liked it or not, a point had been made.

War is Hell. The Key to Winning is Making it More Hellish for the Other Guy.

We inflict collateral damage in war almost every day.

That’s the nature of war. It’s never pretty. But killing off a bunch of terrorist scum and their friends in one series of surgical strikes makes mathematical sense…

Certainly more mathematical sense than letting thousands die just so we don’t have to deal with the moral issues of torturing one murderous thug.

The reason I bring this up has to do with the current controversy surrounding Apple’s refusal to give the federal government access to the phone records of — surprise, surprise — a proven, not to mention dead, terrorist.

I’ve seen Mark Zuckerberg, along with a horde of amateur Con Law experts, stand in support of Apple’s defiance, and for the life of me, I cannot understand it.

Releasing the private records of a proven, deceased mass murderer does not constitute legal precedent of massive implication. 

It’s a very specific situation where doing what’s practical — as opposed to blindly sticking to what some people believe but cannot prove is protected by the Constitution (is this really unreasonable search and seizure?) — would yield far more good than bad.

These knee-jerk responses to the government’s request are coming from people who look at the law with absolutely no concept of nuance — just like those principled law students who’ve never had to face the reality of an atomic bomb in the trunk of a car… or any non-hypothetical issue relating to the law, for that matter.

In reality, the law is often nothing but nuance. It’s why the Constitution was intentionally drafted to be vague. It’s why we have so many lawyers to argue over it and interpret it. It’s why we have amendments.

Sure, stick to your guns. Don’t let the government tap into that phone. Don’t investigate every single contact in that phone as a potential lead.

And don’t send the SEALs in to take care of those who would just as soon see our entire society burn to the ground.

Let these terrorists, who have nothing but contempt for our Constitution or way of life, use those very laws to render us deaf, blind, and bound when it comes to fighting them.

Let treasonous, liberal attorneys like Lynne Stewart, who defended Sheikh Omar Abdel Rahman, a.k.a. “The Blind Sheik,” after he was arrested for his involvement in the 1993 WTC bombing, use rigid interpretations of the law to keep their clients in touch with their associates even while behind bars.

When principles act to grant rights to dead murderers, while at the same time depriving thousands of citizens of basic safety — paid for by those very same citizens — then maybe it’s time to look at the nuances.

One Phone Doesn’t Mean a Hackable Operating System… It Means One Phone

Does this mean that Apple and every other tech manufacturer should create operating systems specifically so that the federal government can have its own back door to use at its leisure?

Of course not… I wouldn’t trust the government with any broad-stroke privileges.

The Fed’s decision to predicate this demand on the All Writs Act, which was drafted in 1789, should be seen as beyond absurd — even in the eyes of a novice attorney — and will without a doubt get promptly urinated upon by Apple’s army of lawyers.

Shaky, tenuous precedent notwithstanding, we’re still far away from any government-mandated operating system design guidelines.

And that’s the real threat that both the company and its giant customer base are worried about.

It’s good to be vigilant, but to conflate an isolated case with sweeping changes on that level seems a bit too much, especially given the potential benefits access to that phone’s data could create.

And looking at the bigger picture, is that request even inconsistent with existing policy with regard to criminal investigation?

They have the right to raid his home… They have the right to seize his bank records… They even had the right to tap his phone while he was still alive.

Citing the Fourth Amendment as a catchall protection against this investigation may be just as childish as relying on a law that predates the cotton gin to compel Apple to cooperate.

So why am I writing this in a publication about money and investing?

Well, as I said, these issues wouldn’t even exist without modern technology.

When the All Writs Act was passed, people were still writing with quill and ink. They weren’t sending text messages. They weren’t making international calls.

Today, our connectivity with one another is so expansive that’s it’s evolved us into a kind of super-organism… and the scary thing is, it’s just getting started.

Think your iPhone is cool or amazing? Think it holds an incredible amount of information? Worried that information might fall into the wrong hands some day?

Well, just think about this: The next evolution in personal consumer electronics is going to do to the iPhone what the cellular phone did to the landline.

It could be the single biggest leap forward since the advent of the Internet, and yes, with that leap, so too will come more opportunities for criminals to abuse it and for our government to regulate it.

Which means debates like the one that inspired this diatribe will be more and more common as we move into the future and will even guide the development of technology and the nature of investing along with it.

Fortune favors the bold,

Alex Koyfman

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