A Stitch in Haste

A commentator at the Wall Street Journal ($):

Ultimately, as the courts have noted, the test is whether the legitimate government interest involved -- in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives -- outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

Of course, these two paragraphs are mutually exclusive. If the Constitution is "the supreme law," then that includes the Fourth Amendment (which, as an amendment, clearly trumps the original Articles), therefore someone who invokes the supremacy of the Constitution cannot simultaneously argue that there is a "balancing test" between security and privacy.

So which is it -- is the Constitution -- including the Fourth Amendment -- "supreme" or isn't it?

Actually, the choice is a false one. It is the Constitution itself, via the Fourth Amendment, that already provides the "balancing test" for intruding upon privacy -- the test of probable cause. The Administration's apologists, like this one, keep insisting that the warrantless wiretapping is targeting "known terrorists." Notice how he invoked not your privacy interests or mine, but "the privacy interests of individuals who are communicating with al Qaeda terrorists." Well, if they're so known, then why not just get a warrant, especially given FISA's 72-hour retroactive warrant provision? If a particular threat is so clear, then it will be clear to the FISA court and they will issue a warrant.

Or is the problem that the threat is not so clear as the apologists would have us believe? Recent reports would suggest so.

Also, we now know that the warrantless wiretap scandal is not about "those of us who communicate (knowingly or otherwise) with foreign terrorists." It's about anyone domestically who communicates with anyone overseas. There's a difference.

So the "known threat" is not necessarily the person on the U.S. end of the phone or even on the overseas end of the phone. But listen anyway. Such is the apologists' definition of "known threat."

The apologists for warrantless wiretapping are engaging in an intentional bait-and-switch. They are decrying the somehow "anti-Constitutional" protestations of "privacy rights absolutists." I have yet to meet such an "absolutist." No one is seriously demanding "no wiretapping," but only no warrantless wiretapping (and its ultimate expression, data mining).

A jurisprudence of "the Constitution for me but not for thee" is neither honest nor persuasive. No credible, non-circular argument has been put forth to defend the need for plenary authority of the Executive Branch to wiretap without probable cause and therefore a warrant, at least retroactively.

The government doth protest -- and wiretap -- too much.