I Spy, You Spy, We All Spy

Attorney General Alberto Gonzales appeared yesterday before a Congressional hearing on the White House authorized program to conduct surveillance on telephone calls in the U.S. without a warrant. My feelings on this issue are strong enough to make me watch C-SPAM last night. It takes a lot to make me watch C-SPAM, especially during dinner.

I listened carefully to the Attorney General as he explained the White House interpretation of the law on this subject. As a lawyer, I don’t buy it. I think the administration is trying once again to cloak an issue in the dust cloud of 9/11, because they're convinced that after that solemn invocation we will buy anything that follows. Well, this is an attempt to sell us a pig in a poke. That cute little phrase originated in the Middle Ages when traders would put a cat in a poke – a bag – and attempt to sell it to an unwary buyer as a pig. If you like cat meat and eggs for breakfast, then this little misdirection play isn’t a problem. But, if you prefer bacon or ham, then you’d better open that poke and pull that squirming thing out by its hairy tail.

We’re told that this warrant-free surveillance is authorized under the president’s Constitutional wartime powers as commander-in-chief. Problem: this isn’t a war as contemplated by the Framers because Congress hasn’t declared war as provided in the Constitution and because … well … it just isn’t a real war. Real wars are fought against other nations or governments or some other definable entity; real wars have measurable objectives that can be achieved in the expected lifetime of not more than one commander-in-chief; real wars involve enemies who hang out in army-like outfits that eventually can be located, surrounded and eliminated; you know when you’ve won or lost a real war because someone raises a white flag or stops trying to kill you and your friends.

The war being invoked for this surveillance is a war on a noun – in this case, terrorism. It’s similar to the surreal wars on other nasty nouns – tyranny, communism, poverty, drugs, and crime. These are snappy little phrases, and a hell of a set of political mantras, but they’re not real wars as contemplated by the delegates who granted power to the executive branch on September 17, 1787. Where are the strict constructionists in this Constitutional interpretation game when we really need them?

Let’s look at an analogous war on another noun - the war on tyranny. That word is often invoked alongside its more popular sibling, terrorism. At the base of the twin flagpoles at the magnificent National World War II Memorial in Washington, DC, is the following inscription:

"Americans came to liberate, not to conquer, to restore freedom and end tyranny."

Noble words, to be sure; words that sound very familiar to what we’ve been hearing over the last couple of years. Well, how did that “end tyranny” thing work out in 1945? Not well; you can look it up. Before we finished sweeping up the confetti from the V-E and V-J Day parades, tyranny, like freedom is apparently inclined to do, was “on the march”. The newly empowered Soviet Union under the brutal hand of Joseph Stalin was spreading tyranny through Eastern Europe like it was soft margarine. The list of tyrannical dictators who have ruled with terror around the globe since we fought WWII to end tyranny is still being compiled. Tyrants and terrorists will always be with us as long as politics, religion, geography and other beloved boundary lines are with us.

Again, no one ever has won or every will win a war against these ethereal enemies. But – that doesn’t mean we don’t fight against them – of course we fight against them! The point is that these fights don’t rise to the level of Constitutional wars that invoke the full scope of powers wielded by the commander-in-chief in a war declared by Congress. To conclude otherwise is to accept the notion that we are in a global war against the faceless, numberless powers and principalities of evil that will last forever. All time will be wartime, and the loss of personal liberties will be the price we pay for the so-called security obtained through our perpetual wars on terrorism and tyranny. In the end, we will be left to ponder the words of Benjamin Franklin, who knew a thing or two about freedom, liberty, and war:

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

More to come.