Law, order, and judgment

My husband and I argued for quite a long time last night over chicken tacos about what I like to call the "tempest in a teapot" that he likes to call the "tragedy of watching our nation become less free." I speak, of course, of the signals-intelligence/NSA/warrentlesswarrantless[grrrr...]-communications-intercept thing I blogged about here. The crux of our discussion is contained in our exchange that (my side) a President's powers in wartime are different from and appropriately stronger than his powers in peacetime, and that (his side) this is a war the end of which may not - probably will not - be obvious. He, I note, doesn't disagree with what the Bush administration has done, because this administration appears to have been careful in self-limiting its application of the NSA program in question. His beef is that Bush will not be in office forever; someday there'll be another Clinton (I hope not too soon) or Nixon, and the Bush precedent will give that person political and legal cover for less responsible use of the government's far-reaching surveillance capabilities.

I'll refer interested people to Tom Macguire for lots and lots of interesting information on the story. I found this entry to be particularly edifying. Don't neglect the comments. Tom is probably THE resource for the Plame-leak story as well, from all I've seen; frankly he's so deep into that story that I've completely lost track of who did what to whom. I suspect he'll be similarly thorough on this one.

Now that we have that out of the way... my husband and I are both correct, in my oh-so-humble opinion of course. Privacy, I've heard it said, is an illusion these days. The question is not what information is being gathered - assume that all of it is - or whether it's being stored - assume that all of it is. The question is what it's being used for. The government (I hate that over-broad formulation, but what are you gonna do?) ought to have little interest in me; I have no influence, no significant money, no contacts with unsavories, and I seldom talk about bombs or plots, though I do sometimes refer to my children as "pure evil," especially when they're still awake after 10:30. But the fact that I don't particularly care whether the government is monitoring my communications doesn't necessarily translate into a sense of "nothing to see here" from a civil liberties perspective. My husband's point is well taken: not every national leader is Bush.

[Side note: I confess that I love to make that kind of point; I think it probably drives reflexive Bush-haters nuts to hear it, just as referring to the non-Soviet West as "the democracies," as a contrasting term, e.g., "We in the democracies, unlike you Soviets...", reportedly infuriated the Soviet Union in its heydey, when it maintained that it was a democracy.]

John Adams famously said that "We are a nation of laws, not of men." I yield to no one in my respect for Adams, and only a little of that respect derives from my parvenu excitement that my children are his descendants, though I'm just a peasant Irishwoman. But he was a little off the mark: We are a nation of laws and of men. One often-cited advantage of our Constitution over behemoths like the unsuccessful EU version is its brevity and adaptability; it's written in sufficiently general terms that it remains brief even a couple of centuries and a universe of change after its drafting, because it didn't, and doesn't, micromanage. But it's obvious that a generally written law can be open to interpretation.

Equally obvious is that a too-specifically written law applies to too little in the real world to be useful for much, giving rise to more and more itty-bitty laws so that every circumstance is covered. I'm inclined to think that the balance we almost inadvertantly created - a framework that we've "fleshed out" with caselaw over more than two centuries - is The Way, not least because empirically it's proven to be so, so far. What it means, though, is that at times, particularly at critical times, we have to decide whether to try to circumscribe government action with law or to submit to the judgment of our elected leaders.

This principle is just as broad as the Constitution, and Adams can be forgiven for overlooking it, I think. Democracy was new and essentially untried (the Greeks' and Romans' experiences with democracy and republic being effectively lost to history at that point). The Founders were Hobbesian in their belief that men must be constrained by law because men were fundamentally - or Originally - sinful; but these same men, many of them, had already pledged their lives, their fortunes, and their sacred Honor to an abstract other than God, a singularly un-Hobbesian thing to do. Is it so unrealistic that they may have viewed themselves, and their compatriots, as different in kind from George III? And so they might have assumed that an elected chief executive would hold the nation's good close to his heart, and indeed I think they were right, in the main. It's the judgment of that chief executive that we must rely on, more than his motives.

At this point, the anti-Bush crowd sees a no-win situation. Relying on Bush's judgment, they might say, is certainly no better than relying on his morals. And that's where I ask for evidence. Occam's Razor is useful here, too: what reason might Bush have had for authorizing the NSA program? Any reasonable answer to that question does not include "personal gain."

Which does not address my husband's objection. But this part does: at this reading, 43 individuals have sat in the Oval Office, literally or figuratively. They were men of ambition, men who craved power on some level, or else they would not have pursued a job that makes men old. Not one of them has succeeded in becoming a dictator. The chances of one's achieving such a Hobbesian feat now, when the power of the citizen to be heard and to hear is greater than it's ever been, seems to me to be vanishingly unlikely. We're in the midst of a flowering of civil liberties unprecedented in history - but, like my darn kids, we complain because we only got four new Gameboy games rather than a new DS.

[Another side note: actually, my son is saving up to buy a DS. He knows full well that complaining about our not buying him one is not an effective tactic with us.]