Salon: Give Me Liberty or Let Me Think About It - What the wiretapping debate says about freedom. By Michael Kinsley

How to reconcile the wrongness of wiretapping with the praticality that it may be necessary sometimes ? By pointing out that current law ALLOWS wiretapping and Bush didn't follow it because Bush did not want to be bothered with following the law -- law

Give Me Liberty or Let Me Think About It

What the wiretapping debate says about freedom.

By Michael Kinsley

The argument starts with the traditional, and still powerful, slippery slope: Today it's him, tomorrow it's you; or, today it's your international phone conversations, tomorrow it's your desk drawers. The Bush administration is helping to prevent slippery-slope arguments from seeming paranoid by slipping and sliding before our very eyes. We gave him the thuggishly entitled Patriot Act, and now he claims constitutional authority to ignore the safeguards in it. As the ACLU points out in a current ad campaign: What was the point of that whole debate if the administration was going to disregard the result?

And the slippery slope extends beyond civil liberties, which not everyone fetishizes, to the rule of law generally, which is more popular. That Congressional Research Service report revealed last week is a meticulous and deadpan analysis of the administration's express and implied reasoning in claiming a right to wiretap conversations at will. No legal restriction on presidential power of any sort could survive the administration's logic, which skips with ease over statutes and the Constitution itself.

Robert Bork, who is admired and reviled as the king of stinting literalism in constitutional interpretation, always uses wiretapping as his one great example of legitimate reasoning by analogy. The authors of the document didn't know about wiretapping, but if they did, they would regard it as a "search and seizure" just like a police raid, and therefore restricted by the Fourth Amendment. The administration doesn't deny this directly, but its logic leaves citizens little or no protection against government wiretapping as a practical matter.

The Fourth Amendment is typical of laws protecting civil liberties in that it doesn't forbid the government to invade people's privacy or lock them up or take their property. Rather, it requires the government to be "reasonable" and to explain its reasons to someone else. In short, it requires a reality test. It recognizes that even freedom exists in a world of trade-offs. But it does not trust the government in power necessarily to make those trade-offs correctly.

This is the second answer of the soft-hearts to the hard-heads: We're not as otherworldly as you think. We do recognize that there is a trade-off between the values we celebrate and the practical demands of protecting those values. We just need a reality test. Is the enemy in the war on terrorism really worse, justifying greater violations of civil liberties and human rights, than the enemy in World War II?

Here, once again, the Bush administration helps to make the softies' case. They could have jumped through the required hoops and be wiretapping away about five minutes later. Or if they didn't like the way some court was interpreting the law, they could have gotten a law tailor-made from Congress just the way they liked. ("I'll take it medium rare, with cuffs but no pleats, and hold the right to a jury trial.") But that was too much trouble.

Michael Kinsley is Slate's founding editor.

Give Me Liberty or Let Me Think About It - What the wiretapping debate says about freedom. By Michael Kinsley


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