In his mostly specious and obfuscating
article in Thursdays edition of "The New Republic - Online" (registration required for full article)
Judge Richard A. Posner does raise one interesting point:
"This legal debate is complex, even esoteric. But, apart from a handful of not very impressive anecdotes (did the NSA program really prevent the Brooklyn Bridge from being destroyed by blowtorches ?), there has been little discussion of the program's concrete value as a counterterrorism measure or of the inroads it has or has not made on liberty or privacy.
Not only are these questions more important to most people than the legal questions; they are fundamental to those questions. Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy."
The remainder of the article is an unwarranted justification of the NSA domestic spy program because - "they want to get us" (trademark pending), but in this one point Judge Posner remains unmistakably correct. (I won't even get into, but can't fail to mention the hypocrisy Judge Posner who purports to be a "strict constructionist" implies in his last sentence) Political junkies like myself remain rapt as lawyers, legal philosophers, constitutional scholars heatedly debate the legality and or constitutionality of the NSA warrantless spy program as the majority of the country hits the snooze button.
As a layperson and a political junkie I am fascinated as to the legal arguments that will be made at the upcoming Senate Hearings and beyond. As a layperson it seems ridiculously clear that laws have clearly been broken and the Constitution abused but I am harshly reminded by Judge Posner's article that there will be no "beyond" if the argument can't be framed so that "Billy Ray Joe Bob" can easily digest the argument and react viscerally.
The majoirity of polling bears this out and clearly shows that the majority of the American people just simply can't, or won't grasp the far-reaching implications for the future of this country when the argument is framed around a legal and or constitutional debate. It is only when you personalize the argument that the American people suddenly wake up.
The Republican media machine including Judge Posner clearly realizes this fact (that they really don't have a legal leg to stand on), so when the Executive Administration trots out only a few sycophants to argue the legality and or constitutionality of the NSA program, hordes of Republican pundits and politicians flood the airwaves with the intellectually dishonest and pandering response - "because they want to get us"
We need to re-frame our arguments to realistically reflect just whom we are reaching out to. While our side is shouting, "the Law!", "the Constitution!", Republicans are quietly asking "But what about the children?" and winning the argument to the American people almost every time.
When the majority of the American people refuses to comprehend that their Civil Rights are being pissed on, that Laws are being broken by the Executive branch. When the majority of the American people remain more concerned about cold beer and hot tamales it is most certainly not the time to take the moral high ground. Every time a Republican opens his/her mouth the response must be, "I have a reasonable suspicion that the NSA on orders from the Executive branch was and may still be spying on me and other guiltless Americans for nothing more then political gain?" Let the bastards prove ya wrong!