Last December, I incurred the wrath of many normally collegial readers of this weblog for writing an article, here, entitled OH MY GOD! The government’s been spying on us…. They were incensed because I ridiculed the shock and moral outrage people expressed after reading (or, more likely, hearing second hand) about the NSA domestic surveillance program, which President George W. Bush signed by executive order in 2002.
For the record, even the Washington Post concedes that:
The aim of the program was to rapidly monitor the phone calls and other communications of people in the United States believed to have contact with suspected associates of al Qaeda and other terrorist groups overseas.
But, in August, their wrath turned to schadenfreude when U.S. District Judge Anna Diggs Taylor not only ruled the program unconstitutional but also ridiculed Bush by asserting, fatuously, that “There are no hereditary kings in America….” Not surprisingly, this heretofore relatively insignificant judge from Michigan ignited a media cause célèbre: for left-wing Democrats who then felt justified in accusing Bush of trying to create a police state, and for right-wing Republicans who felt equally justified in accusing his critics of giving aid and comfort to al-Qaeda.
Meanwhile, I thought Judge Taylor’s ruling was so patently flawed and fated to be overruled on appeal that I refused to dignify it with an iPINIONS article. Alas, few of my fellow bloggers showed similar restraint or prescience. But at least Dr Marc Lamont Hill of Blackprof.com displayed commendable academic skill by parsing her ruling in search of legal relevance. Unfortunately, he undermined the integrity of his endorsement of it by highlighting the fact that Judge Taylor’s ruling was distinguished more by political insults than legal reasoning; which compelled me to write the following comment to his article:
Given the convoluted, conflicted and controversial nature of this issue, ad hominem statements only cloud it. And this is especially so when such unworthy are codified in judicial opinions – as they only lead to misleading inferences that end up in titles to blog posts like this one.
Therefore, I think Judge Taylor’s use of this politically-charged cliché comments [i.e. “There are no hereditary kings in America….”] was injudicious. Because, as judicial dictum goes, it undermines and detracts from her legal reasoning, such as it is, and makes a mockery of her presumed impartiality.
No one is more wary than I am of Bush’s use of his war on terror as a pretext for exercising extra-legal executive powers. And no where are my suspicions in this respect more acute than in wondering about his refusal to abide by the provisions of the FISA, despite the amendments proffered by Democrats. (And, don’t get me started on his furtive signing statements)
But I look to Judge Taylor to explain only why Bush’s actions violate the constitution, not to ascribe to him imperious and unsustainable motives. Indeed, notwithstanding my concerns, I expect the Supreme Court will overturn the parts of her ruling declaring his surveillance activities unconstitutional.
The good news is that – on Wednesday – a federal appeals court panel overruled Judge Taylor, unanimously! And, to add insult, the panel refused to dignify her ruling with a judicial comment; except to indicate that they expect the Supreme Court to be equally dismissive of it and affirm the president’s executive authority to order warrantless wiretaps.
But, thus vindicated, I feel no inclination to gloat. Instead, I wish only to reiterate the unassailable fact that warrantless wiretaps further a legitimate national security interest. And I hope critics of this program will now take a moment to reflect on the probability that, given all of the other warrantless intrusions on our privacy we blithely tolerate everday, the only harm being debated concerns the political ambitions of rabid, anti-Bush Democrats.
NOTE: For further clarification on warrantless wiretaps, consider this:
The warantless wiretaps Hewlett-Packard Co. chairman Patricia Dunn allegedly ordered to eavesdrop on fellow board members and select journalists (to find out who was leaking privileged information to those journalists) served no national security interest and was absolutely illegal. That’s why she and her corporate plumbers were arrested yesterday, and rightly so!
domestic spying, National Security Agency
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