Wiretapping and the Constitution: Harvey Mansfield Clears Things Up

Harvard political philosopher Harvey Mansfield clears up the confusion over the wire-tapping controversey in the US, with a nuanced explanation of the role of executive power in the Constitution:

In the Constitution executive power represents necessity in the form of response to emergencies. It anticipates that events will occur or situations will arise that we cannot anticipate through our laws; it anticipates what we cannot anticipate. The legislative and the judicial powers (and the executive insofar as it merely executes laws) represent our choices as they have been fixed in law, our foresight as far as it goes. The Constitution mixes choice and necessity, reflecting our desire for self-government (which takes effect in our legislation) and our recognition of the limitations of human foresight and the imperfection of human laws. These are opposite principles made into opposing elements of our government, yet they are also complementary. Each needs the other, and the constitutional system makes each in some degree aware of the other.

Interesting conclusion about the 1978 FISA:

From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law makes surveillance subject to approval by a secret court of judges, who are thereby placed in a false position. If they give approval readily, they go against their profession as judges and fail to give judicious consideration to each case. Yet if they think as judges in terms of criminals rather than enemies, that may do harm to the country. We note that President Bush’s critics do not want him to stop surveillance; they just want him to do it legally–as if legality could guarantee success and morality could make our enemies give up.

Here’s my most recent post on this. More on Mansfield here and here.

UPDATE: Joe Knippenberg responds to this attack/critique of Mansfield’s article. Lots of interesting comments to JK’s post as well.