The Ethics of Spying, Part II

While the left pushes the course that "we'd best figure out if any laws have been broken and proceed directly to Grand Jury; can't have any non-sexual trampling-of-people's-rights shenanigans in the White House, now," the Corner's Andy McCarthy provides a look at what he calls the "phony scandal," in response to Rich Lowry's post on a Times article, "What Is the NSA Program?"

The sleight-of-hand used to inflate the NSA program is to subtly shift from emphasis on interception of phone calls to, as the Times puts it, the "volume of information harvested from telecommunication data and voice networks." This, we are breathlessly told, is being done "without court-approved warrants" and in an amount "much larger than the White House has acknowledged."

There's only one problem. As a matter of law, all telephone/email information is not constitutionally or statutorily equal. The interception of content (what you say to me and I say to you in a call or an email) requires court approval based on probable cause in most (but, importantly, not all) instances. But other telecommunication data -- e.g., the fact that my phone number called your phone number at such-and-such at [sic] time on such-and-such a date, and that we spoke for seven minutes -- does not. The latter category of information does not implicate the Fourth Amendment at all because no one has a reasonable expectation of privacy with respect to it.

McCarthy also notes the SCOTUS verdict in the 1979 case, Smith v. Maryland, and contends that "[i]t is disingenuous to suggest, as the Times does, that court-approved warrants are required for the collection of such information."

Meanwhile, Michelle Malkin points to a Hardball exchange intended to nail down the "Bush opposed by his own lackeys" meme with the help of NBC's DOJ correspondent Pete Williams that comes up short. Lowry has the text of the exchange that drips with Matthew's "gotcha" drool.

Malkin updates with a Newsbusters piece and the contention that "the Associated Press is playing book publicist for NYTimes reporter James Risen, whose book blabbing about the Bush administration's classified counterterrorism programs is out today," and links to the Time review as well.

Interestingly, many of the Bush admin "scandals" followed the publication of books involving insiders. Remember Paul O'Neill? Richard Clarke? You can pick up both men's tell-alls on Amazon for a savings of nineteen bucks and change.

The left may be on the right track - were any laws broken? Or not.

The problem is that this questionable pursuit of justice, much like Plamegate, puts the cart before the horse in presuming a crime for which the law must be determined while dragging out unnecessary information. Further, it promises no justice yet comes with a high price tag: national security.

It sounds terribly democratic to say that no one is above the law. But it's merely childish to presume - in a world of nations violently opposed to ours - that we can play the leveling game in terms of law versus justice, intelligence and erstwhile civil rights at home and pay no price to our enemies.

"The Ethics of Spying, Part I."

CP @ GMC.