Zeal can be good, but it’s dan­ger­ous

The Washington Times Weekly - - National -

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 Aug. 17 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.

Wesley Pruden is ed­i­tor in chief of The Times.

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