March 31, 2007


Afraid of Freedom?: Backtracking on warrantless surveillance, president still scorns privacy rights (Nat Hentoff, January 26th, 2007, Village Voice)

[T]he president in no way acknowledges that he broke the Foreign Intelligence Surveillance Act in the NSA's warrantless filling of FBI and CIA databases in its secret spying. As New York Times legal analyst Adam Liptak noted on January 19: "The administration continues to maintain it is free to operate without court approval." The president has not embraced the Fourth Amendment and judicial review of his "inherent" powers, despite his backtracking on the warrantless spying."

Furthermore, in a little-noticed declaration on January 17, the nation's chief law enforcement officer, Attorney General Alberto Gonzales, said in a speech at Washington's American Enterprise Institute that federal judges are not "equipped to make decisions" about actions taken by the commander-in-chief regarding national security. "A judge," said Gonzales, "will never be in the position to know what is in the national security interest of the country." So judges should back off. [...]

In the landmark free-press 1971 "Pentagon Papers" case (New York Times Co. v. United States) -- in which the Nixon administration demanded severe punishment for the New York Times's having published highly classified information on government conduct (and lies) in the course of the Vietnam War -- Justice Hugo Black, writing in the majority, warned of government brandishing "national security" to silence the press in time of war. "The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic," Black wrote. "The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged."

But among the dissenters, Justice Harry Blackmun warned: "The First Amendment . . . is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety . . . I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment . . ."

Funny how folks are only absolutist about Amendments when it suits their partisan ends.

Posted by Orrin Judd at March 31, 2007 12:00 AM
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