January 11, 2006
Are You Scared of Alito?
By William
F. Buckley
So Senator Kennedy
wants to know why it is that, "undeterred by the public outcry,
the president vows to continue spying on American citizens."
That mauling of Bush was done in passing, on the first day of
deliberations over the nomination of Samuel Alito to the Supreme
Court.
It is easy to dismiss
what the senator says on the grounds that whenever he touches
on the judiciary he is predictably high on that particular hooch
that brought him to denounce Judge Robert Bork in language that
would have been excessive in describing the grand wizard of the
Ku Klux Klan. But allowing for the senator's lack of judgment
in these matters, it is worth probing what he says on the grounds
that there are some people, somewhere, who take his charges seriously.
The outstanding question
here is: What public outcry? Critics of the action taken by President
Bush are, in ascending order of gravity, (l) those who regularly
exclaim that any increase in the resources of law enforcement
is a threat to our liberty; (2) those who believe that this particular
initiative of the president is uniquely despotic; and (3) those
who believe that in taking this initiative, Mr. Bush didn't abide
by his covenant with the legislature, which was to check out with
Congress and a federal judge any federal surveillance of any individual
that extends to listening in on telephone calls and intercepting
mail.
But the question remains:
What public outcry? There was some of this in Congress, but the
situation was troubled: Irate members of Congress had to contend
with the president's saying that at least a dozen times he had
advised relevant members of the intelligence committees of what
he was doing.
The matter of checking
in with a federal judge is also in question. The administration
takes the position that the congressional resolution authorizing
the use of military force to combat terrorism subordinates the
matter of checking with a judge. The language of that act, passed
into law three days after Sept. 11, is certainly sweeping. It
gives to the executive the right "to use all necessary and
appropriate force" against persons the president determines
to be involved in terrorist activity. There hasn't been an outcry
beyond perfunctory alarums by ACLU types because there aren't
any signs of clerical bloodletting.
It is vexing for American
conservatives, who think of themselves as presumptive critics
of the accretion of government power, to be put on the defensive
here. The difficulty is that conservatives have warned over the
years that any increase in the size of government is innately
threatening to individual freedom. If the government taxed income
at 100 percent, we would be slaves. (There would, one assumes,
be a public outcry.) The enduring political question asks whether,
pari passu, Americans lose freedom as government increases its
size and disposes of a larger share of the people's income.
In the matter at hand,
there isn't a substantial public outcry, measured as squeals or
yells from citizens imposed upon. This is so because not enough
citizens are subject to surveillance to bring on anything like
a national alarm. To begin with, those who are subject to special
surveillance are overwhelmingly non-citizens. A second reason
for the general tranquility is that there is not much of a record
of abuse. The public comes to life when there is evidence of an
abuse of power, as when court after court, during the '60s, exonerated
defendants who were clearly guilty of conspiring to deny civil
rights in the South.
There is surely someone
out there who never even threatened a cat, who will one day step
forward to complain that his telephone was tapped. But individual
abuses don't constitute public threats. And Judge Alito isn't
likely to show any more patience for abuse by public authority
than would the head of the ACLU. Senator Kennedy is barking up
a tree in which no gorillas are hiding.
Copyright
2005 Universal Press Syndicate
