Roger L. Simon

Every cloud has a silver lining?

The WSJ’s Daniel Henninger concludes his thought-provoking piece today “Bin Laden as Patrick Henry? Confusion reigns five years after September 11.“:

It is possible to sharpen the focus of this matter further. The critics of the anti-terror surveillance programs such as the NSA’s warrantless wiretaps give the impression that these efforts somehow violate principles laid down at the ratification of the Bill of Rights. The legal arguments, however, revolve around the requirements of Title III (establishing probable cause for electronic surveillance) and the FISA statute. Both laws, from the 1960s and ’70s, in part were a reaction to government wiretapping of individuals involved in the civil-rights movement and anti-Vietnam War protests.

Many of those in the opposition on these surveillance issues–in Congress, the legal community and the press–are people whose personal and intellectual formation is rooted in the events of that era. This is the prism through which they transmute any political event; does it pass or fail the commandments carved in the ’70s? But this is 2006, not 1974. Islamic jihad and al Qaeda are not the Montgomery marchers or Kent State, and our debate and laws should reflect that. Applying transaction analytics to telephone traffic is not the same as two cops with headphones in a hotel listening to the people in the next room.

Perhaps there’s a silver lining. The public demonizing of Messrs. Bush, Cheney and Gonzales as ruthless tramplers of civil liberties is a throwback to the anti-LBJ, anti-Nixon style of Vietnam-era protests. This has been catastrophic for shaping public policy around this issue. But if the bad guys go slow because they think that George Bush and Dick Cheney are RoboCops willing to do what they gotta do track, trap and catch them, hey, maybe our crackpot “system” works after all.

Maybe. But the RoboCops are only in office until 2008 and the bad guys are operating on a time scheme very different from ours. I’m not so sanguine as Mr. Henninger (and I wonder if he’s so sanguine himself).