The  New York Times has an editorial today arguing that President Bush’s attack on the House surveillance bill, the one that “threatens the safety of the nation” by not allowing the President to wiretap at will and, more importantly, won’t give telecoms blanket immunity for jumping as high as the administration says, is wrong.

Hardly shocking, right?  Well, step back and bit and you may think otherwise. 

Imagine that there was a law passed in Congress that no one knew about that authorized the government to create a secret court, with secret judges, where only prosecutors could go in order to get eavesdropping warrants signed.  There was no defense lawyer told that this was going to happen, and none allowed to argue against it.  There was no one to challenge the affidavit in support of the warrant as a pack of lies, or stale, or lacking in substance, or simply inadequate to justify the extreme remedy of eavesdropping.  The secret court would decide to grant the warrant in secret, and no one would ever know that it was granted.  There was no way to challenge the warrant afterward, no appeal and no knowledge that any of this ever happened. 

Can you imagine that happening in America?  It’s crazy.  It’s unAmerican.  It sounds like the Spanish Inquisition meets Godzilla.  It’s the process established by the  Foreign Intelligence Surveillance Act of 1978, 50 U.S.C.  § 1803.

The sad truth is that few knew it happened at the time.  As word leaked out about this wild secret court that rubber stamped eavesdropping warrants, people couldn’t believe it.  Something like this could never happen in America.  But it could, and it did.

For every fan of logical fallacies, you know that the  slippery slope argument is one of the most reckless and overused arguments around.  But it isn’t always wrong.  The problem is that you can only prove its validity in retrospect, and prospective use is tantamount to sheer speculation.

And so we return to today’s New York Times editorial, which pines for the days when we had a mere star chamber to decide invasions into the privacy of Americans.  This would have been unthinkable in 1978.  Eavesdropping was considered so inherently drastic, so fundamentally wrong, that the idea that the Times would encourage the existence of a court for just that purpose was unthinkable.  A secret court would have been a joke, beyond the pale.

Thirty years later, the New York Times argues for this secret court.  Not because it has a professed love of secret courts, but because the alternative is the wholesale elimination of any oversight at all.  Back then, the idea of trusting federal judges to issue ex parte warrants would have been the stuff of anti-Utopian novels.  This was Huxley and Orwell after a night of eating tainted enchiladas, coming up with a scenario so far-fetched that no one would believe it possible.

That said, here’s what the New York Times thinks today:

He accused House leaders of “putting in place a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists.” Actually, the bill merely ensures that special judges continue to supervise surveillance of American citizens. The “cumbersome process” is really a court that acts swiftly and has refused only a half-dozen of more than 21,000 wiretap requests in its nearly 30 years of existence.

Sometimes the slippery slope applies, and now, 30 years later, we see that the Church Committees recommendations led to a day when the notion of any judicial oversight of government intrusion into our privacy is considered too much.  They never saw this coming.

Some will say that I’m just an old man remembering a simpler time when our country wasn’t threatened with terrorism as it is today.  My anachronistic, simplistic views of freedom and privacy are “quaint”, but grossly unrealistic.  Maybe so.

But I do know a few things.  About 3000 people died in the WTC attack on 9/11.  About 3300 people (the second leading cause of death of children under age 4) die each year by drowning in a pool.  About 4000 American troops have died thus far fighting “terrorism” in Iraq since 9/11.  About 50,000 people die every year in automobile accidents.  The threat of terrorism is overstated in terms of harm to Americans, and we happily ignore the basic facts when jumping to facile conclusions.

No one would have believed that we would be discussing the wholesale elimination of oversight of eavesdropping warrants 30 years ago, when we took that first step onto the slippery slope.  Look at us now.