The news last month that the government has been goggling over the private phone records of millions of Americans for the last four years was not even half a day old when the boundaries of debate were marked off. Nobody issued any edict. Nobody made any announcement. But, unmistakably, as if by an invisible hand, a convention settled over the virtual public square. The coming conversation (as brief as it would be) needed to be about the "law."
The milquetoast media, unable to provide its own informed critique, assumed once again the role of sound stage for the bloviatocracy. This dictated that the dispute, if any, would be about the legality of the conduct.
As a result, the only discussion that matters whether we Americans want our government sticking its snout in our phone records would be buried.
This wasn’t the first time that a normal response to the Bush government’s outrageous conduct got derailed by trivia. This has been standard operating procedure for almost five years now. Every time an ugly truth about this regime and its destructive behavior pops up, serious reaction quickly fades beneath obnoxious, noisome, repetitive ranting over some short-lived, sophomoric distraction.
For the administration and its media thralls, the "legal question" has become a potent artifice of misdirection.
Just a few months ago, the Bush regime deftly deployed this legal card to dupe the liberal nitwit set into debating the legality of the NSA’s warrantless interception of phone conversations. Caught with its pants down, the administration avoided the spanking it so richly deserved simply by asserting that the "program" was legal. It was, of course, a ridiculous claim. But it didn’t matter. By throwing down the legal gauntlet, the regime knew that the suckers on the other side would feel compelled to pick it up and counter with a brilliant analysis to show the illegality of domestic spying. The discussion shunted into FISA courts, Fourth Amendment "construction," statutory interpretation, legislative history, footnotes in obscure legal opinions, and assorted other legal blah, blah, blah. News of this brazen breach became a "moot court" topic for TV jawboning. Merely by mounting a rebuttal to the regime’s moronic claim, the opposition made it a legitimate "issue." The "opposition" thus snatched defeat from the lips (if not jaws) of victory.
Once the Bush administration recovered its balance, it pulled out all the stops in flogging its pretext for the "program" the all-purpose "war on terror." In fact, the White House con artists were so successful in playing the "law card" that the NSA is still listening in on our private phone conversations whenever it wants. As absurd as it is, the regime has been given a pass for its past and continuing invasions of Americans’ most intimate speech.
The "legal issue" ruse is effective because it sounds sober, responsible, and boring. It turns off the vast majority of Americans, who yawn and change the channel without any real worries or doubts, comforted that those in the know are giving serious treatment to the "issue." With the matter entrusted to experts, Americans are given something they seldom turn down a reason to stop thinking about uncomfortable truths.
To state the obvious, the "legal card" trick assumes that law determines collective judgment rather than the other way around. Laws are not goals. They are instruments. Even as tools, laws usually do a poor job. A really good law requires tons of care, thought, authentic civic spirit, and good writing. On those rare occasions when these elements come together, the nation’s fundamental values and interests in their complexity and inconsistency will inform laws or judicial decisions to deal modestly with a narrow range of circumstances. But even this almost never happens. Most of the law consists of rules designed to promote short-term interests of the rich and powerful, and has no connection to America’s foundational political values. Law does not create, inspire or, in the end, do much to protect the national ethos.
In the NSA revelations, what matters still matters, I hope is whether this is the America that Americans want. In its political roots, the American spirit is profoundly repulsed by government agents, at their whim, listening in on our private conversations. The Bush regime’s subterranean assault is so deeply odious and noxious to any mature sense of liberty that the law should not even be considered necessary to protect against it for, as everyone can now see, law never will be sufficient for the job. These incursions should be felt by each of us for what they are an affront to our individuality, a smashing through the zone of our most delicate social existences, a personal region that should be protected by a thick cloak of sheer and voluntary respect not the coercive threat of law. These values ones every American at least can understand are the "issue." Whether the "program" is illegal is trivial.
In reporting on the NSA’s phone-conversation-interception "program," the New York Times handed America an advanced draft of a bill of impeachment. But America blew it. Americans saw and heard about a "legal issue." The ordinary law-abiding American did not see or hear the state security police rummaging through the drawers of his own personal life. The last best chance America had to disrupt the momentum toward a police state fizzled away in the frothy ambiguity of legal points and authorities.
It has now happened all over again. The uproar over NSA’s latest-revealed occupation of our zone of privacy rapidly dissipated as soon as "legal question" got attached to any mention of it. Within 24 hours, the logorrhea of law defused any real counterattack on the regime’s romp through our phone activity. The final blow in this rout of reason came when the noble Senate confirmed Gen. Michael Hayden, the regime’s top human tool in executing its Homeland Security lockdown, as new CIA chief.
Just how bad things have gotten, however, is best demonstrated by widespread acceptance of the notion that, if he NSA’s outrages do violate the law, Congress can change the law so that those outrages are made legal. Ten years ago, it would not have been necessary to point out the stupidity of the idea that the government’s illegal abuse of its citizens can be solved by legalizing the conduct. The regime has sold America on inverting the relationship between law and political values. This is proof beyond a reasonable doubt make that beyond a moral doubt that any will to preserve American democracy is dying.
I point this out now but, frankly, this may be just for the record. This "nation of laws" is devolving into a nation of frightened men and women, bowing before talismanic invocations of a mythical war on terror, the willing subjects of a rapidly consolidating autocracy.