The ends don't justify the means

Erwin Chemerinsky, writing in the Philadelphia Inquirer in an article entitled "The Constitution's message: Not all means are justified" concludes with:

The President's defenders claim that technically his actions were legal in that the Fourth Amendment does not apply to government actions outside the United States. Assuming that the calls were physically intercepted in foreign countries, the claim is that the Fourth Amendment didn't apply at all.

This argument, though, ignores that the Supreme Court has said that the Fourth Amendment protects a reasonable expectation of privacy. Every American surely has a reasonable expectation that calls or e-mail will not be monitored without prior judicial approval in the form of a warrant.

Attorney General Alberto Gonzales said the President had the power to do this pursuant to Congress' authorization for the use of military force following 9/11 and under inherent executive power. No court, however, ever has said that Congress or the president can suspend the Fourth Amendment, which requires a warrant for any search, including electronic eavesdropping by the government. Quite the contrary: In 1972, the Supreme Court expressly rejected President Nixon's claim of inherent presidential power to engage in warrantless wiretapping for security purposes.

Perhaps most distressing is the attempt to brand those who revealed the illegal surveillance as disloyal and a threat to national security. This is a familiar refrain from the Bush administration when its violations of fundamental liberties are exposed. In December 2001, then-Attorney General John Ashcroft said that those "who raise phantoms of lost liberties" are giving aid and comfort to the enemy.

But the American Constitution did not create a benevolent ruler and insist that the people place blind trust in his choices. A democracy requires that the people know what their government is doing. It is despicable for the administration to try and silence its critics by branding them as traitors or as threatening national security.

Early in the 20th century, in a case ironically involving wiretapping, Supreme Court Justice Louis Brandeis remarked that the greatest threat to liberty will come from government officials claiming to be acting for noble purposes. He explained that people born to liberty know to resist the tyranny of despots. The insidious threat to liberty, he said, would come from well-meaning people of zeal with little understanding of the Constitution. Louis Brandeis did not know George W. Bush or those in his administration, but he could not have selected better words if he had.

Some of my favourite quotes, for their wisdom, clarity and delicious language, come from judges in their written decisions. The courts seem to be one of the last places where we still have an expectation that reason might prevail. Though (God knows :-), it's certainly under attack from, what Jimmy Carter in his latest book calls, the "fundamentalists" currently in power.