For my part I think it is a less evil that some criminal should escape than that the government should play an ignoble part . . .. If the existing code does not permit district attorneys to have a hand in such dirty business [wiretapping], it does not permit the judge to allow such iniquities to succeed.
Olmstead v. United States [1928]

The critics don’t know when they’re well off. Instead of ranting against George Bush they should be grateful they live in this free country with telephones instead of some other place in the world. It was all brought to mind by the recent brouhaha over wiretapping.

At first hearing indiscriminate wiretapping engaged in by Mr. Bush sounds like something out of Soviet Russia or Nazi Germany or even 20th century China. Unlike those countries, however, there is a perfectly reasonable explanation of why it is being conducted by George Bush and it is much better than what appears to be the alternative.

Wiretapping takes place not because Mr. Bush is bored and wants to find out what those of us with exciting lives are talking about and doing. (He doesn’t read newspapers and relies on the likes of Dick Cheney for information on current events. If Mr. Cheney were one of your main contacts with the outside world, you, too, would fancy the amusement found in random wiretapping.)

Mr. Bush is wiretapping because he says it has been authorized by Congress and, considering the alternative, we should be glad that it was.

After 9/11 Congress passed a resolution that says in part: “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. “ Although there is little force involved in tapping a telephone, Mr. Bush nonetheless believes that that language gives him the authority to tap phones. Rather than complain about it, we should be grateful that he’s not blowing up houses in our cities and killing their occupants as he did in Pakistan recently. That is another way of discovering and dispensing with terrorists but it’s hard on the non-terrorists affected. Here’s what happened in Pakistan.

On January 17 someone in the intelligence service learned that there was going to be a dinner party in Damadola, a village in Pakistan. Among the guests were believed to be four terrorists that the United States had been trying to capture or kill, one of whom was believed to be Ayman al-Zawahiri, second in command to Osama bin Laden. That belief was based on what was described by American personnel as “good intelligence.” No United States citizens’ lives were in danger during the attack since it was carried out by a remotely controlled Predator aircraft armed with missiles. All it had to do was shoot its missiles at the dinner party and return to its base. It did that and killed all the guests, including non-terrorists.

Good intelligence turned out to be bad. Mr. Zawahiri was not one of the guests. The disappointment was lessened when it was learned there were in fact three or four other terrorists at the dinner who were killed thus making the raid worthwhile. If there was anything negative about the raid, it was that in addition to the dead terrorists there were six dead children and seven dead non-terrorist adults. As sad as that was, they were nothing more than casualties of the war on terrorism. That is no big deal, as press secretary Scott McLellan’s post-death press conference made clear.

Asked about the raid he had nothing to say about the innocent dead people. He said the administration would continue to work with Pakistan in hunting down terrorists. He said: “Al Qaeda continues to seek to do harm to the American people. There are leaders who we continue to pursue, and we will bring them to justice. The American people expect us to do so, and that’s what this president is committed to doing.”

As I said at the outset, wiretapping critics should be still. All Mr. Bush is doing to capture terrorists in the United States is tapping our phones. The first time a drone aircraft blows up a dinner party in Kansas City in a house lacking phones to be tapped because Mr. Bush thinks a terrorist may be there, wiretapping critics will have good reason to complain. Until then they should be still and be grateful for the wiretap. Destroying the constitution (that he doesn’t understand much less respect), Mr. Bush would be the first to say, is infinitely preferable to destroying private property that he both understands and respects.

Christopher Brauchli is a Boulder lawyer and and writes a weekly column for the Knight Ridder news service. He can be reached at brauchli1@attbi.com

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