Statute of Frogs

Reading the article in this morning’s NY Times about Judge Taylor’s decision in one of the warrantless wiretap challenges, I was struck by the frequency with which the argument that this decision would weaken national security was used in decrying the decision. This is a perfectly reasonable political argument, but I find it totally unconvincing as a legal rationale.

All the rights guaranteed by the Bill of Rights limit the ability of the government to act in ways that it thinks best for the protection of the people. Those rights represent a trade-off between government power and individual rights and, the way the government is set up, we either need to accept that trade-off or amend the constitution.

Certainly, the government could fight crime (including terrorism) more effectively if it could enter anyone’s house on the merest suspicion and search for evidence of wrongdoing. Looking only at national security, it seems clear that the Fourth Amendment weakens national security significantly. But national security isn’t the only consideration. As a country, we’ve elected to accept a less-robust national security in exchange for certain privacy and procedural rights. Totalitarian regimes are, I think, more likely to be focused on national security at all costs.

Given that, the argument that not having the ability to wiretap domestic lines without a warrant weakens national security seems to me to have no legal value. It certainly has political value, but judges are (at least in theory) apolitical. That’s the point of life tenure. So whatever one might think of the legal merits of the decision, it seems to me that its effect on national security is largely beside the point.