Shadowboxing with Congress

Reactions to NSA’s secret spying on American citizens continue to reverberate through Washington and the mainstream media, making this case an interesting prism for some of the broader issues of the war on terror. We’ve already expressed skepticism about the sincerity of Congress’s rejection of the administration’s spying, a trend that has continued with John McCain’s recently expressed doubts about the legality of the warrantless spying.

The liberal position on the issue is probably best represented by a letter to Congress in this week’s New York Review of Books signed by several prominent legal academics. The letter argues that the NSA spying was not authorized by Congress, and that without such authorization, the spying raises “serious questions under the Fourth Amendment.” These arguments exactly echo John McCain’s comments yesterday on Fox News. Here’s what McCain said:

You know, I don't think [the NSA wiretaps were legally authorized], but why not come to Congress? We can sort this all out. I don't think -- I know of no member of Congress, frankly, who, if the administration came and said here's why we need this capability, that they wouldn't get it. And so let's have the hearings…Let's have the administration come to Congress. I think they will get that authority, whatever is reasonable and needed, and increased abilities to monitor communications are clearly in order.

McCain makes clear that the legalist objection does not involve any substantive opposition to domestic spying. It has nothing to do with protecting liberty. There’s nothing here that’s remotely critical of the ridiculous assertion that the United States is under immanent threat. Congress simply wanted to be in on the action. And the letter in the NYRB replicates, on a more sophisticated level, exactly this position. Remarkably, the lengthy letter didn’t make a single substantive argument objecting to the spying itself. The liberal authors would apparently be as pleased as John McCain would be if the exact same secret program were in existence with Congressional backing.

On this blog, we’ve had a lot to say about the failures of the antiwar movement. The lack of ideas there is mirrored in the striking inability of liberal critics of the Bush administration to make substantive arguments about why Bush’s emergency powers are wrong. Domestic spying is not wrong because Congress should have been involved. It’s wrong because it’s a violation of liberty, under outrageously false pretences. The secret monitoring of communication, with or without Congressional authorization, is not befitting a free society. That should be the basis for opposition to such policies. But that requires taking a principled rejection of the whole idea of the “terrorist threat,” something that Bush’s liberal critics seem unwilling to do.