the American people were presented with evidence that the president
of the United States had broken the law. The New York Times,
relying on confidential information provided by people in the
government, reported that the administration has conducted unauthorized
surveillance of phone and e-mail communications between Americans
and people abroad.
Republicans, as we
all know, believe in punishing lawbreakers. But lately, their
sternness is selective. Instead of asking a special prosecutor
to examine the legality of its abuses of power, the administration
decided to go after those who exposed them.
This inquiry brings
to mind Evelyn Waugh's response upon hearing that Randolph Churchill
had undergone surgery for a benign tumor. The doctors, he complained,
had managed "to find the only part of Randolph that was not
malignant and remove it."
The leakers, if they
broke laws, did so only to stop even more serious abuses by people
at the highest levels of government. Yet the Justice Department
is unable to work up any enthusiasm for investigating the president
or the National Security Agency.
If the Justice
Department insists on pressing its case, we can expect a re-enactment
of the Valerie Plame probe. Unless the leakers can be found, the
reporters will be called on to identify their sources -- as Judith
Miller and Matthew Cooper were eventually coerced to do. But if
the administration expects the courts to force the Times
reporters to divulge their sources this time around, it may find
that it is doing a swan dive into an empty swimming pool.
The critical difference
is that unmasking Valerie Plame served no useful purpose. The
leaks in this case, by contrast, served a function that is vital
in a democracy: letting the public know that the government is
secretly doing something it is not authorized to do.
The president insisted
that the disclosures amounted to "helping the enemy."
One of his spokesmen said, "The fact is that al Qaeda's playbook
is not printed on Page 1, and when America's is, it has serious
But an opposing coach
doesn't have to steal the Indianapolis playbook to find out that
Peyton Manning sometimes throws the ball. As Daniel Benjamin,
former counterterrorism director for the National Security Council,
wrote recently in Slate, "No terrorist with half a brain
thinks his communications are protected by Fourth Amendment strictures
against unlawful search and seizure."
The Foreign Intelligence
Surveillance Act, after all, permits this sort of surveillance
with a court-approved warrant. It's no surprise to al Qaeda operatives
that the U.S. government may tap their phone calls. The only surprise
is that the government may also tap calls made by American citizens
on American soil, without judicial authorization.
So the administration
will have a hard time showing that these revelations harmed our
security. Absent such harm, judges are likely to balk at forcing
testimony by reporters. In the first place, it may be that no
crime has been committed. In the second place, the courts may
rely on well-established precedents to conclude that even if the
leaks were illegal, they were justified to expose a greater evil.
What evil? A policy
that invades privacy and almost certainly violates the law. The
Foreign Intelligence Surveillance Act establishes a procedure
for the executive branch to get warrants to carry out such wiretaps.
The administration didn't follow that procedure and says it didn't
have to -- because the war resolution passed by Congress after
the Sept. 11 attacks implicitly overrode FISA. This nonsense becomes
nonsense on stilts when the attorney general concedes that, if
asked, Congress would have refused to authorize such surveillance.
also claims that, regardless of what the law says, the president
has "inherent authority" as commander in chief to engage
in wiretapping without a warrant. Just because a president has
certain inherent prerogatives, however, doesn't mean Congress
has no power to regulate them.
As Justice Robert
Jackson wrote in the Supreme Court's 1952 decision barring President
Truman from seizing steel mills during the Korean War, the president's
"command power is not such an absolute . . . but is subject
to limitations consistent with a constitutional republic whose
law and policy-making branch is a representative Congress."
In this instance,
though, President Bush decreed that he could not only defy such
legal limitations but do so in secret, and that those who exposed
his defiance should be punished. His is an old story: For the
emperor to appear naked in public is appropriate. For anyone to
mention it is not.
2005 Creators Syndicate