SINCE 1759

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Our Supreme Soviet
The Spies Who Shagged Your Fourth Amendment

“We are currently in the throes of another national seizure of paranoia, resembling the hysteria which surrounded the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era,” the judge wrote. “Those who register dissent or who petition their governments for redress are subjected to scrutiny by grand juries, by the FBI, or even by the military. Their associates are interrogated. Their homes are bugged and their telephones are wiretapped. They are befriended by secret government informers. Their patriotism and loyalty are questioned…. More than our privacy is implicated. Also at stake is the reach of the Government’s power to intimidate its critics.”

The words could have been lifted out of a court opinion written yesterday. But that’s assuming the federal bench hadn’t been stacked with judges who, like the Supreme Court’s latest two arrivals, play lapdogs to executive power. The words above were actually written by Justice William O. Douglas in a once-landmark 1972 case forbidding secret domestic wiretapping. The spying had been ordered by the unsurprising Richard Nixon. The court ruled 8-0 that Fourth Amendment freedoms against unreasonable searches and seizures “cannot properly be guaranteed if domestic surveillances may be conducted solely within the discretion of the executive branch.” Half the court’s judges were Nixon appointees, including Chief Justice Warren Burger and Justice Lewis Powell, the author of the decision and a member of the court for only six months. Nixon, still riding 62 percent approval at the time, couldn’t muster a single vote out of his court.


Just before Nixon nominated him, Powell had written a newspaper article defending secret wiretapping and suggesting that the difference between wiretapping of foreign and domestic sources was “largely meaningless.” But those were days when you couldn’t quite predict Supreme Court outcomes by the rank partisanship of its members, when constitutional principle could still trump the ideological abuses of a presidency looking for a blank check. Times have indeed changed. Lewis had meant it, when questioned during his confirmation hearings about that wiretapping article, that he was keeping an open mind—unlike John Roberts, the current chief justice, who gave senators a lesson in the importance of precedent during his hearings only to spend his first two years on the court playing IED to a slew of precedents.

William Rehnquist, the late chief justice, was also a recent Nixon appointee at the time of the 1972 domestic spying case. But he chose to recuse himself without explanation. No explanation was needed. Until 1971, he’d headed the Justice Department’s Office of Legal Counsel as the chief lawyer responsible for giving legal cover to the president’s illegal acts. “The most important government office you’ve never heard of,” in Newsweek’s words, the Office of Legal Counsel was recently headed by John Yoo and Stephen Bradbury, the lawyers infamous for drafting memos justifying torture and, once again, domestic spying, among other Soviet rewrites of the Constitution.

This time around, besides a servile judiciary, the Bush administration is enjoying a groveling Congress, too—neo-Democrats who think adopting Republicans’ contempt for the Constitution is the only way to look tough on terrorists. Democrats had a chance to stop the Bush administration’s domestic spying. Twice. In June they surrendered to a law that lets secret, warrantless spying continue, sidelining a special court’s oversight role. They promised the measure would be temporary. But they’re about to do it again, and let the blank check stand for six years, never once asking the question that disintegrates the administration’s argument about needing that dictatorial authority: If the wiretapping of phone or internet communications targets only suspected al-Qaeda operatives (as long as one of the parties is abroad, supposedly), and potentially millions of such communications are being targeted, is the administration suggesting that millions of Americans are having contact with suspected terrorists? In effect, yes. It’s an absurd proposition. Don’t expect Democrats to muster the capacity to shatter it.

We need a new “Crucible”—a morality play that, like Arthur Miller’s classic of 1953 that linked Cold War McCarthyism to the Salem witch trials, updates the genealogy to include the hysterical age of 9/11.

During the Cold War we had an excuse with those 12,000 nuclear warheads pointing at American and Soviet cities. The only thing pointing this way today are the juvenile and weirdly bearded taunts of those two faded fugitives, Osama bin Laden and Ayman al-Zawahiri. They have less star power in the Islamic world, where they’re either ridiculed or despised, than they enjoy among their enablers here—the three, once-separate branches of government, standing united in service to al-Qaida.

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