Wiretap Dancing

As calls for retroactive immunity for telecom companies who participated in the bush administration’s illegal wiretapping program go unanswered, the democrats have announced a plan to allow judges to be presented defense evidence without the plaintiff present. This compromise is designed to give everyone their day in court, but allows the defendant the opportunity to plead their case for forgiveness on an individual basis. Time will tell whether this is a fair legal compromise, but it does not address the broad question raised in the debate.

I have been torn over this for some time. On the one hand, we have people who helped the government to break the law. Whether it was under duress is beside the point. That is an issue for court. The legal case for immunity revolves around whether they knew it was illegal or genuinely believed that mitigating circumstances and the interest of public safety justified the decision.

On the other hand, there are outraged citizens who feel this is the very epitome of government overstepping and violating the most basic expectations of constitutionally guaranteed rights.

I think of the controversy in post WW II France involving industrialists who honored the armistice and through their businesses furthered the German war effort. It has been said that Arthur Miller was the conscience of America and the same can be said about Albert Camus and France. He wrote on the trial of Louis Renault with the same mix of emotion and reason intrinsic to all his works.

Camus argued it was a responsibility higher than law to honor France. French big business was charged with not breaking the law to protect France against its enemy. American business was asked to break the law for the same reason. Of course, the comparison goes astray. Renault was asked to act within the law by a government under the influence of the enemy. The telecom companies were asked to break the law by a government under the influence of, well the enemy. And by enemy, I don’t mean al Qaeda.

The very spirit of the Declaration and the Constitution and the Bill of Rights is to protect the people against an overzealous and tyrannical government. In fact, these documents assume it is in the nature of a government to behave that way. One of the great themes of the American Experiment is that the rebellion against tyranny is ongoing and rooted it the mistrust of government. It is expected that this mistrust be maintained and loyalty sacrificed to it in the name of keeping our government viable in its designed purpose. It is ridiculous to ask a person to break the laws protecting us from tyranny in order to preserve the government charged with enforcing those laws.

Perhaps the executives charged with aiding the government in breaking the laws and violating the rights of the citizenry were afraid, of both the government and al Qaeda. Of course, they were violating laws that were created to save them from the governmental oppression, so it must have been al Qaeda.

This will turn out to be a fascinating set of civil trials. No one will watch and no books will be written. All that will happen is that precedent will be set that affects every future generation of America. The Constitution has been put on trial before, but it seems this is the only time in my generation its fiber and underpinnings are being challenged. These people broke the law. There defense must be heard, but we all must hear it. It should be covered with the same zeal as a celebrity murder trail.

After all, Camus also believed the industrialists should have their day in court, and that their defense should be heard with reasoned ears. Now we find ourselves in a situation where big business is asking to avoid a day in court. Would that not be as great a transgression as that of which they are being accused? Is it not at least comparable? And does this not indicate a troubling pattern?

I may still change my mind. Camus was known to do that, and from one extreme to the other. But then, I’m no Camus.