THE BLOG

Listening In

Having voted for the left in 2007 and again in 2012 only makes it easier for me to say how much this business of court-sanctioned wiretaps placed on Nicolas Sarkozy over the course of a full year is both baffling and, as a matter of principle, quite shocking.

Shocking, first of all, by the mere fact of wiretapping a former president who was, therefore, the leader of the democratic opposition. By putting the one under surveillance, the rest are watched as well. By listening to the conversations of that one, the listeners are in the unprecedented position of knowing everything about the doings of an opposition party whose freedom of movement is, in a democracy, sacred. Watergate was not so long ago. The wiretapping of Sarkozy may have been a Watergate with judges instead of plumbers -- but it was a Watergate all the same.

Shocking, too, the style of these bugs, the flavor of the fishing expedition where it is not suspicion that motivates the surveillance but rather the surveillance that creates the suspicion and where, even if you are not exactly sure of what you are looking for, you are pretty sure that if you give it long enough you'll end up finding something. This sort of random eavesdropping, a transformation of the classic "watch and punish" into "watch and prevent," which more resembles the Law of Suspects from 1793 than the law we have come to know, this lazy listening that dispenses with the sort of old-fashioned investigation in which evidence is collected after a well-grounded showing of probable cause that a crime has been committed represents, even in the case of a major offender, an abuse of procedure and of public power. How much worse is it in the case of an official who has never been implicated, as far as we know, in abuses such as creating phony jobs for cronies, enjoying the use of undervalued apartments, or sinking the Rainbow Warrior?

But wait, you say, there was a suspicion! The Gaddafi business. There was evidence that Libya financed the 2007 campaign. And that was, it seems, the ground for the extraordinary exercise in eavesdropping. The argument is meretricious. For what, in the end, was the evidence? The allegations of a Tripoli prostitute; a document denounced as a fake both by the man who supposedly signed it (Moussa Koussa) and by its supposed recipient (Bachir Saleh); and the claims of that pillar of God-fearing morality, Ziad Takieddine. And then, comparing evidence for with evidence against, there is this piece in Sarkozy's favor, which, at the very least, should have caused the hand that signed the wiretap order to hesitate: The Libyan dictator had six months to produce the "proof" that one of his sons claimed before the start of the war to exist. A hundred yards from his Bab al-Azizia compound Gaddafi had cameras from every television network in the world just waiting for the global scoop that one word from him would give them. By speaking out he could have undermined his adversary and, in so doing, immediately stop the bombings that eventually deprived him of power and ultimately cost him his life. That word never came, and the scoop never was.

Equally disgraceful is the confiscation of the business telephone of an attorney named Herzog, the confidentiality of whose exchanges with his client provides the basis for a fair defense and who, moreover, is the attorney for a crowd of other clients who are now caught in the same net as the former president and know that their email, their texts, and even their disclosures and admissions are on the desk of a judge who, judge though he be, is also a man with his share of the petty foibles and curiosities found in all of us. By what right and in the name of what did we permit this indiscretion? By what dispensation did we allow this intrusion into a privileged relationship that, as with physicians and, formerly, with confessors, is meant to remain confidential, out of sight, inviolate. Oh, there are exceptions, we hear. Attorney-client privilege is indeed sacred, except if the lawyer in question is himself a criminal linked to wrongdoing by serious evidence, etc. Well, we are still waiting for this serious evidence. And the judges responsible for this unprecedented suspension of the right to a legal defense, for this unusual attack on the honor of a member of the bar, would be well advised, in my humble opinion, to make haste to find a plausible excuse for their actions.

I almost forgot the man-in-the-street arguments of the type, "Only a crook would get a second cell phone under an assumed name." Well, I know firsthand that when you know you are being watched, when even your private life is spread out, as Paul Bourget likes to say, on the "moral dissecting table," when the legal system, instead of protecting your right to confidentiality, is the first to trample it, then one is strongly tempted to protect oneself however one can. And as for the sentence passed down, unfortunately, by a senior government official, Benoît Hamon, who said that "when one has nothing to hide, it's no big deal to be wiretapped" -- well, that is not only inept but ignoble. Is it not precisely when one is innocent that the intrusion of the government's big ear into one's inviolable private life, for a year, becomes a nightmare? You don't have to be mean-spirited to imagine that a person might have things other than crimes that he wishes to keep to himself.

I hope it is clear that this matter poses the question of the right to privacy and confidentiality in a democracy.

Above and beyond the case of Sarkozy, it illustrates the terrible passion of zealots who are always ready, in the name of transparency and purity, to sacrifice the fundamental human right that is the right of each of us to remain unobserved and not overheard.

It expresses the urgency of placing limits on the limitless desire of others to invade the penumbral region in the soul of each and every one of us.

Translated by Steven B. Kennedy

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