Sunday, June 24, 2007

Warrantless Taps Revisited

US District Court judge Royce C. Lamberth, former head of the Foreign Intelligence Surveillance Court (FISC), renewed the controversial topic of warrantless wire taps in a speech before the American Library Association's annual convention. Said Lamberth, "We have to understand you can fight the war and lose everything if you have no civil liberties left when you get through fighting the war." (Washington Post: Ex-Surveillance Judge Criticizes Warrantless Taps.)

The FISC was created in the aftermath of September 11th, and was intended to provide swift judicial assistance in issuing warrants to wiretap conversations between suspected terrorists and people inside the US. On the surface, FISC sounds like it meets all the legal requirements for issuing a valid warrant, except for one minor detail. The court meets in secret.

Having approved over 99% of the requests submitted by the FBI and NSA, FISC is little more than a rubber stamp for the executive branch. By meeting in secret, the court bypasses the oversight of the most important branch of government in the nation: We The People. There is a reason judicial proceedings are intended to be public. Open proceedings must withstand the scrutiny of the people, and are intended to ensure that the accused is dealt with in a fair and open fashion. Any secret dealings of a court smacks of despotism, blurring the lines between the executive branch and the judicial branch and all but eliminating the checks and balances between the two.

It is not coincidental that the Justice Department and the Judicial Branch of government are separated. They provide a check and balance against each other. Those who represent the government - the prosecutors - do not serve in the branch of government that was created to provide fair and impartial justice. For our system of government to work, those separate and often conflicting entities must remain separate. For any court to meet in secret undermines that separation and undermines the impartiality of the court itself.

The Executive Branch by necessity must place suspected terrorists under surveillance, but it must do so with the approval of the Judicial Branch and the process by which that approval is granted must withstand the rigors of public scrutiny. Said Lamberth, "What we have found in the history of our country is that you can't trust the executive. The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can't be at all costs."

That statement is not an indictment on the current administration. Rather, it is an acknowledgment that absolute power cannot be granted to any individual. It is an understanding that the executive branch of government is on a continuous quest to obtain and solidify additional authority. That is true regardless of which political party currently calls the White House home. It has always fallen to the Judicial Branch to rein in attempts to circumvent the Constitution, to rein in attempts to garner powers not granted it under the Constitution, and to maintain that careful balance of authority shared by our three co-equal branches of government.

In the case of warrantless wiretaps, the ends do not and can not justify the means. Liberties once lost are never regained. While it is easily to justify in our own minds the tapping of suspected terrorists, it is imperative that We The People remember that it is our civil liberties, not just those of the terrorists, that are threatened by this action. To surrender our liberties in this fashion is the greatest victory these terrorists could ever hope to achieve. It falls to all of us to ensure that they are not victorious. It is our responsibility to ensure that our civil liberties are not compromised.

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