- The Washington Times - Friday, August 18, 2006

You don’t have to be a Philadelphia lawyer to understand the First Amendment guarantee of free speech is fundamental to everything we are — and to regard anyone who tries an end run around it as someone who deserves a bracing smackdown.

Presidents of both parties are sometimes tempted to try an end run or a shortcut because the Constitution can get in the way of the easiest way to enforce the law. The ruling yesterday by a federal judge in Detroit that the government’s wiretapping without a warrant is unconstitutional and must be stopped at once should have been unnecessary. There’s a law that enables the government to get a warrant, but sometimes a president and his attorney general think that’s too much trouble.

The judge, Anna Diggs Taylor, ordered a permanent injunction — temporarily stayed to allow appeal to higher courts — barring agents of the National Security Agency’s Terrorist Surveillance Program from listening to conversations between American citizens and suspect parties abroad. “It was never the intent of the framers [of the Constitution] to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights,” she wrote (and continued for another 42 pages).

The Bush administration argues that it has the right to eavesdrop without a warrant because this enables the government to move quickly to protect American lives. The government says proving it would reveal state secrets. “We could tell you,” the attorney general is saying, “but then we would have to kill you.”

Before the Corporate Republicans in the government, whose instincts are to run the government as they would a large corporation where how secrecy is enforced is nobody else’s business, ride off in three directions at once to denounce the ruling they should invoke a variation on the WWJD rule (“what would Jesus do?”) and ask, “what would Janet do?” Janet Reno, the attorney general under Bill Clinton, rankled Republicans and other conservatives with imaginative assertions of dubious federal rights (think Waco, think Elian Gonzalez) to make the jobs of cops and government bureaucrats easier. Republicans, even Corporate Republicans, would rightly scream foul if a Democratic attorney general in the mold of Ramsey Clark or Janet Reno should assert the right to flout the requirement of obtaining a warrant because it was just too much trouble.

It’s not that the government has a shortage of lawyers, or a shortage of sympathetic judges. The Foreign Intelligence Surveillance Act created a secret court where the government can apply for warrants. The court has turned down government requests only three times in 30 years, and in the present climate where nobody — well, almost nobody — discounts the lethal threat of Islamic fascism it’s difficult to imagine the court making it difficult for the president’s men to get a warrant to protect American lives. “It’s not the most difficult statute to comply with,” says Evan Caminker, dean of the University of Michigan Law School, “but they do have to have some reasonable belief that the person may commit a crime.” No fishing without a license, you might say.

Maybe you can’t blame the government, which knows a lot of scary things it doesn’t want to talk about, for its zeal in putting evildoers away. But it’s nevertheless still true that eternal vigilance is the price of liberty, it’s still true that power corrupts and absolute power corrupts absolutely, and it’s still true that Ronald Reagan was right when he warned us to “trust, but verify.”

The government sometimes warns of catastrophe when it really means someone is merely annoyed. The Justice Department, for example, has indicted two former lobbyists for the American Israel Public Affairs Committee, under a law enacted at the beginning of World War I, for talking about what they heard — gossip, essentially — about what the government might do about Iran. This follows the government’s case against journalists who may, or may not, have leaked gossip about Valerie Plame, the queen of the pastepots at the CIA. The government is asking us to put up with certain infringements on rights and privacy, and most of us understand that we’re in a different kind of war against a shadowy but no less lethal enemy. But the government, whether Republican or Democrat, has to be careful what it asks us to put up with. Confidence lost is difficult to regain.

Pruden on Politics runs Tuesdays and Fridays.

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