Are you scared of Alito?

Posted: Jan 10, 2006 9:05 AM

So Senator Kennedy wants to know why it is that, "undeterred by the public outcry, the president vows to continue spying on American citizens." That mauling of Bush was done in passing, on the first day of deliberations over the nomination of Samuel Alito to the Supreme Court.

It is easy to dismiss what the senator says on the grounds that whenever he touches on the judiciary he is predictably high on that particular hooch that brought him to denounce Judge Robert Bork in language that would have been excessive in describing the grand wizard of the Ku Klux Klan. But allowing for the senator's lack of judgment in these matters, it is worth probing what he says on the grounds that there are some people, somewhere, who take his charges seriously.

The outstanding question here is: What public outcry? Critics of the action taken by President Bush are, in ascending order of gravity, (l) those who regularly exclaim that any increase in the resources of law enforcement is a threat to our liberty; (2) those who believe that this particular initiative of the president is uniquely despotic; and (3) those who believe that in taking this initiative, Mr. Bush didn't abide by his covenant with the legislature, which was to check out with Congress and a federal judge any federal surveillance of any individual that extends to listening in on telephone calls and intercepting mail.

But the question remains: What public outcry? There was some of this in Congress, but the situation was troubled: Irate members of Congress had to contend with the president's saying that at least a dozen times he had advised relevant members of the intelligence committees of what he was doing.

The matter of checking in with a federal judge is also in question. The administration takes the position that the congressional resolution authorizing the use of military force to combat terrorism subordinates the matter of checking with a judge. The language of that act, passed into law three days after Sept. 11, is certainly sweeping. It gives to the executive the right "to use all necessary and appropriate force" against persons the president determines to be involved in terrorist activity. There hasn't been an outcry beyond perfunctory alarums by ACLU types because there aren't any signs of clerical bloodletting.

It is vexing for American conservatives, who think of themselves as presumptive critics of the accretion of government power, to be put on the defensive here. The difficulty is that conservatives have warned over the years that any increase in the size of government is innately threatening to individual freedom. If the government taxed income at 100 percent, we would be slaves. (There would, one assumes, be a public outcry.) The enduring political question asks whether, pari passu, Americans lose freedom as government increases its size and disposes of a larger share of the people's income.

In the matter at hand, there isn't a substantial public outcry, measured as squeals or yells from citizens imposed upon. This is so because not enough citizens are subject to surveillance to bring on anything like a national alarm. To begin with, those who are subject to special surveillance are overwhelmingly non-citizens. A second reason for the general tranquility is that there is not much of a record of abuse. The public comes to life when there is evidence of an abuse of power, as when court after court, during the '60s, exonerated defendants who were clearly guilty of conspiring to deny civil rights in the South.

There is surely someone out there who never even threatened a cat, who will one day step forward to complain that his telephone was tapped. But individual abuses don't constitute public threats. And Judge Alito isn't likely to show any more patience for abuse by public authority than would the head of the ACLU. Senator Kennedy is barking up a tree in which no gorillas are hiding.