Monday, May 15, 2006

As the controversy over domestic spying heats up, the mantra from pundits on the right, from Gen. Michael V. Hayden, the president’s pick to head the CIA, from National Security Advisor Stephen Hadley, and from Mr. Bush himself is: domestic spying is “within the law.” This, from a president who believes he has the constitutional authority to bypass laws made by Congress by appending “signing statements” that effectively exempt him from following the law he has just signed. Mr. Bush has found a handy way to make breaking the law “perfectly legal.”

Illegally diverting public funds to secret prisons with no oversight? Legal, according to the president. Torture banned by international law? He reserves the right. In 2004 Congress passed a bill requiring the Justice Department to inform lawmakers about all domestic wiretaps. Mr. Bush signed the bill into law, but attached a signing statement that gave the Justice Department ultimate discretion to disobey it. “War is Peace” and “Freedom is Slavery” is kid’s stuff. This administration’s ideas of “perfectly legal” would have Orwell himself scratching his head and saying “WTF?”

Having spent some years in Eastern Europe in the shadow of Sovietism, I’m not sure how reassuring the administration’s “legality defense” actually is. I’m a little suspicious when the same people who want to spy on you make the laws that allow them to do so while claiming, without disingenuousness, that it’s all “perfectly legal.” Examples of “perfectly legal” behavior on the part of governments past and present: slavery, ghettos, gulags. Legal? Sure. Just? Well, it depends on your race, religion, or party, I guess.

The assumed coincidence of legality and justice in America has been taken for granted for so long, we’ve become utterly complacent about it. But, in history, the marriage of justice and power has been rare, and short-lived. Is America exceptional? Are we exempt from state tyranny? Some people seem to think so. But excessive government secrecy and consolidation of power in fewer and fewer hands—a single party, the executive branch—are not particularly good signs for democracy, when you think about it. The good news: when you don’t think about it, it’s not such a big deal! Carry on!

That seems to be the American way these days, anyway. Since this story broke, perhaps the most unsurprising reaction, aside from the administration’s legality defense (I mean, what would you expect from a bunch of lawyers?) is the big yawn domestic spying has elicited among the poll-taking public. According to numerous polls, half don’t care if Mr. Bush spies on them. Golly, I wonder which half? And how will they feel about Hillary doing it? Every modern state has its party faithful, of course, willing to toss aside freedoms they think they don’t need themselves, or support laws they think won’t apply to them. But history teaches caution in this. “Of all injustice,” as one 17th century English journalist put it, “that is the greatest which goes under the name of law.”


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