The Bush administration recently admitted that it has authorized wiretapping of U.S. citizens without getting authorization from a special court which oversees wiretapping requests. The court was set up in the 1970s responding to the Church commission, which discovered the extent to which wiretapping was used to investigate anti-war and civil rights protestors during the Vietnam War. The actions by the Bush administration appear to be clearly illegal. Their defense amounts to saying that when Congress passed the law creating the special court, it didn’t really mean it.
One thing I find interesting is how the Bush administration reacted to the disclosure. It’s become a cliche that the coverup is worse than the crime. It seems very likely that Clinton would never have been impeached if he had admitted upfront that he did have sexual relations with that woman. Martha Stewart was put in jail for covering up a stock sale, even though she was not convicted for actually making the sale–that is, she was convicted for covering up an action which itself may not have been a crime. Nixon, of course, was famously done in by the coverup.
Reagan, on the other hand, successfully covered up his involvement in the Iran-Contra case by, in essence, using the senility defense. Even today doubt lingers: maybe he really didn’t know what was going on. But at the same time his image is being burnished to argue that he was responsible for winning the cold war. It’s hard to have it both ways: either he knew what was going on, or he didn’t.
The Bush administration has learned from these cases, and they consistently do something even more clever. When they get caught doing something wrong, they admit it right away, and then they argue that it wasn’t really wrong. We see this pattern on the wiretapping, on the rendition of suspects to other countries, on the secret prisons which allegedly exist in Europe, on the lies which persuaded people to support the war in Iraq. They’ve realized that when they simply assert that their actions are right, nobody can hold them to account. In our society we expect a certain sequence of events: the cover-up, the confession, the apology, the promise to never do it again. The Bush administration follows a different sequence. The effect is that we, as a society, don’t know how to stop them from continuing to do things which are wrong.
It’s possible that if the Democratic party wins an election, they will start a series of investigations. In fact, that’s sufficiently likely that there are already signs of a backlash against it: a feeling that it’s important to move on and govern well rather than get caught up in the past. And I personally think that moving on is probably the right thing to do. What we need to figure out is how to stop people from doing the wrong thing now, not how to punish them years later. The usual mechanism of public shame doesn’t seem to work on the current administration.
Some might argue that the Bush administration’s actions are acceptable because we are in a war. After all, Lincoln suspended habeas corpus. The difference is that the Civil War was always going to have a clear end, one way or another. The so-called war on terror will never end. We need to set up laws that will work throughout the war on terror, and in our society that means laws passed by Congress. We can not permit every presidential administration for the foreseeable future to use terrorism as a justification for any action they may care to pursue.
As it happens, I think the general wiretapping may be a good idea. We live in an era in which small groups of people can wield incredible destructive power. Wiretapping can help identify people working together, although obviously it can only be a small part of protecting us from terrorism. Unfortunately, general wiretapping gives the government enormous power, as we’ve seen in the past. It needs to be done in an agreed legal structure. The most obvious legal structure would be to prohibit wiretapping information from being used in court except for specific crimes such as attempted multiple homicide. There is an obvious slippery slope problem here. And in any case, before we draw the line anywhere, we need to figure out how to make a specific administration obey the line which we’ve drawn.