By Edward Wasserman
Two weeks ago on a cross-country flight I checked three bags, and when I unpacked I found three printed memos from the Transportation Security Administration indicating that they’d each been searched.
Now, my bags contained nothing but clothing, as a scan probably revealed, and I’m a Baby Boomer with no criminal past. So the traditional legal standard for police searches — probable cause — offers no justification for uniformed apparatchiks to run their paws through my shirts, shorts and undies. Apparently I was asleep when the Fourth Amendment was repealed.
I didn’t boil my clothes afterward, but I have to say I’m irritated by this incursion into private space. Worse, I flash to the advice of Antonin Scalia, the Supreme Court associate justice, when he was asked a few years back about lingering anger over the disgraceful 2000 ruling he signed that gave the presidency to George W. Bush. “My usual response is, get over it,” Scalia said.
Now, “getting over it” can be the voice of maturity, sympathetic words to console and encourage a child. But it can also counsel acceptance of the unacceptable. And there’s entirely too much of that sort of “getting over it” going around.
Consider the refusal of the Obama administration to tell the public just what basis it uses in deciding whom to kill. That formulation is a little bald, but basically accurate. Lawsuits brought by the American Civil Liberties Union and The New York Times sought to force the administration to share its legal rationale for targeting and killing individuals targeted as enemies.
Included are U.S. citizens, notably U.S.-born Anwar al-Awlaki and his 16-year-old son, both killed in separate 2011 drone strikes in Yemen.
This is a big deal. Normally, when the government kills a citizen it’s called capital punishment, and happens only after criminal indictment, trial, conviction, sentencing, appellate review, clemency hearing — the full panoply of procedures and protections that constitute due process.
None of that applies here. Now, the lawsuits never challenged the killing. They simply asked a court to declare that the U.S. government can’t refuse to disclose what principles, guidelines, or rules it applies in designating people for drone strikes, hit teams, Acts of God, or whatever other assassination methods it decides the “war on terror” demands.
And the court said it couldn’t do that.
Manhattan federal judge Colleen McMahon seemed embarrassed by her own ruling. “The Alice-in-Wonderland nature of this pronouncement is not lost on me,” she wrote.
But, McMahon continued: “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”
Wow. It’s easy to miss how appalling McMahon’s ruling is.
It identifies no principled basis to force our government to come clean on precisely why it believes it may use the most staggering power any state can wield — the power to take the lives of its own people. What exactly does somebody have to do to deserve death? How does the government know he or she has done it? What’s the evidence? Who decides? What other measures must be exhausted?
That’s none of our business, the court ruled.
Get over it.
The Obama administration’s aggressive belief in its right to evade accountability extends to harsh measures against anybody who exposes sensitive governmental activity without authorization, even when the consequences of exposure seem remote and the public’s right to know about the activity seems indisputable.
Take torture. A veteran CIA agent named John Kiriakou is about to go to prison for 13 months. He was retired at the time he allegedly referred a reporter to another CIA operative, also retired at the time, who Kiriakou thought might have information about waterboarding terrorist suspects some years earlier.
So while the torturers themselves walk free and their ex-bosses draw pensions and write memoirs, we jail people for that?
The government, it seems, is entitled to force us to regard its secrets very seriously indeed, and the Obama administration’s continuing campaign against leaks, from Kiriakou to Wikileaks, is harsh testimony to that determination, even where nobody even pretends to believe the public has been harmed.
Their secrets count, while my private space is another matter.
Edward Wasserman is Knight professor of journalism ethics at Washington and Lee University. He wrote this column for The Miami Herald. Distributed by McClatchy-Tribune Information Services.
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