The Wiretapping Solution

Say what you will about Michael Kinsley, he does present some very well-reasoned arguments sometimes. Case in point: His article today at slate.com about the NSA wiretapping issue.

Kinsley quickly eliminates the liberal argument against it quickly:

"The notion that freedom is indivisible—if you lose a little, you have lost it all; if one person is deprived of liberty, then we all are—is sweet, and useful for indoctrinating children. But it just isn't true."

But then he goes on to make a perfect point:

"Robert Bork, who is admired and reviled as the king of stinting literalism in constitutional interpretation, always uses wiretapping as his one great example of legitimate reasoning by analogy. The authors of the document didn't know about wiretapping, but if they did, they would regard it as a "search and seizure" just like a police raid, and therefore restricted by the Fourth Amendment. The administration doesn't deny this directly, but its logic leaves citizens little or no protection against government wiretapping as a practical matter.

The Fourth Amendment is typical of laws protecting civil liberties in that it doesn't forbid the government to invade people's privacy or lock them up or take their property. Rather, it requires the government to be "reasonable" and to explain its reasons to someone else. In short, it requires a reality test. It recognizes that even freedom exists in a world of trade-offs. But it does not trust the government in power necessarily to make those trade-offs correctly."

Kinsley is 100% correct. If the NSA is going to wiretap Americans without a court order, then we at least need a system in place to independently review these wiretaps after the fact.