Original sin and wiretapping

Rob's post appropriately reminds us that the structural features of our Constitution -- i.e., vertically and horizontally divided and limited powers -- reflect, among other things, a view (see, e.g, Federalis 51) that human beings are not angels.  That said, it is -- in my view -- a stretch to suggest that it is "not consistent . . . with the Christian view of law and government" to believe (not simply because it is "expedient", but because it is consistent with the relevant text and precedents) that the Administration is correct in concluding that it has the lawful authority -- whether under Article II, or under the AUMF -- to eavesdrop on international phone calls involving persons suspected of having terrorist-affiliations. 

Now, Rob is right, of course, that -- as a matter of common sense and political prudence, to say nothing of Christian appreciation for original sin -- protections of civil liberties need a firmer foundation than the "trust"-worthiness of elected officials, and that our Constitution aims to provide such a foundation through -- among other things -- its structure of checks and balances.  There is no doubt that reasonable people can and do disagree about whether this Administration (like the last one) has an excessively expansive understanding of the powers of the Executive branch, as opposed to those of Congress.  But, we should remember, it is every bit as much a feature of our Constitution's design that, say, the executive power is vested in the President, and that the President is commander-in-chief, as it is that, say, Congress has the power of the purse and the Court the power of judicial review.  It is clear (to me) that (many of) the very same people who designed and defended the constitutional structure believed in an energetic and powerful Executive, just as they believed in checks and balances, separation of powers, federalism, and individual rights.   

In my view, it is not, as Rob suggests, "conclusory" for the Administration to say that it has the authority to conduct the NSA program being debated.  Obviously, the Administration should provide -- and has provided -- what it regards as arguments for the conclusion that it has this authority.  Certainly, it would not be enough to say, "we can do what we want, and the lawfulness of our actions is supplied entirely by our good intentions."  But this is not, really, the Administration's argument.

Now, to be clear:  I am as big a fan as anyone of the idea that the Constitution's structural features are essential to meaningful protections of freedom, and that these features should be judicially enforceable.  I am a big fan of meaningful Fourth Amendment protections.  I am not addressing here the question of the degrading treatment of detainees.  And, I am not saying that the President's legal arguments for his authority to by-pass FISA, in some circumstances, and to eavesdrop on suspected hostiles are, at the end of the day, compelling.  I am -- genuinely -- unsure.  But I do not think they are frivolous.  And, with all due respect, I am confident that they are not un-Christian.