01/17/2006 03:43 pm ET | Updated May 25, 2011

What Reason Do We Have to Trust the State to Know Best?

Although I am named in this suit in my own behalf, I am motivated to join it by concerns well beyond my own. I have been frankly appalled by the discrepant and contradictory positions taken by the Administration in this matter. First, the entire existence of the NSA's monitoring was a secret, and its very disclosure denounced as a threat to national security.

Then it was argued that Congress had already implicitly granted the power to conduct warrantless surveillance on the territory of the United States, which seemed to make the reason for the original secrecy more rather than less mysterious. (I think we may take it for granted that our deadly enemies understand that their communications may be intercepted.)

It now appears that Congress may have granted this authority, but without quite knowing that it had, and certainly without knowing the extent of it.

This makes it critically important that we establish an understood line, and test the cases in which it may or may not be crossed.

Let me give a very direct instance of what I mean. We have recently learned that the NSA used law enforcement agencies to track members of a pacifist organisation in Baltimore. This is, first of all, an appalling abuse of state power and an unjustified invasion of privacy, uncovered by any definition of "national security" however expansive. It is, no less importantly, a stupid diversion of scarce resources from the real target. It is a certainty that if all the facts were known we would become aware of many more such cases of misconduct and waste.

We are, in essence, being asked to trust the state to know best. What reason do we have for such confidence? The agencies entrusted with our protection have repeatedly been shown, before and after the fall of 2001, to be conspicuous for their incompetence and venality. No serious reform of these institutions has been undertaken or even proposed: Mr George Tenet (whose underlings have generated leaks designed to sabotage the Administration's own policy of regime-change in Iraq, and whose immense and unconstitutionally secret budget could not finance the infiltration of a group which John Walker Lindh could join with ease) was awarded a Presidential Medal of Freedom.

I believe the President when he says that this will be a very long war, and insofar as a mere civilian may say so, I consider myself enlisted in it. But this consideration in itself makes it imperative that we not take panic or emergency measures in the short term, and then permit them to become institutionalised. I need hardly add that wire-tapping is only one of the many areas in which this holds true.

The better the ostensible justification for an infringement upon domestic liberty, the more suspicious one ought to be of it. We are hardly likely to be told that the government would feel less encumbered if it could dispense with the Bill of Rights. But a power or a right, once relinquished to one administration for one reason, will unfailingly be exploited by successor administrations, for quite other reasons. It is therefore of the first importance that we demarcate, clearly and immediately, the areas in which our government may or may not treat us as potential enemies.