Wiretap case spotlighted blame-game hypocrisy

It was the summer of many discontents. It began with the Hamdan ruling, an angry Supreme Court attacking the president’s interpretation of separation of powers in times of war. Then there was Hezbollah, an angry terrorist outfit that decided to vent its feelings by launching 3,300 Katyushas into northern Israel. And of course there were the angry Democrats in Connecticut who decided it was time to usher in a political neophyte. But I would like to draw your attention to another cause for anger.

On June 26, the Court of Appeals in the District of Columbia agreed to rehear Boehner v. McDermott, a case whose antecedents are a decade old. In December 1996, current House Majority Leader Rep. John Boehner, R-Ohio, participated in a conference call with members of the Republican Party leadership regarding the ethics charges against then-Speaker Newt Gingrich, R-Ga. A couple intercepted this communication over a radio scanner, recognized its political worth and promptly recorded it. The tape made its way to Rep. James McDermott, D-Wash., who co-chaired the ethics subcommittee investigating Gingrich.

As the conversation revealed, Gingrich was in clear violation of an ethics agreement. McDermott, fully cognizant of the illegalities involved, did the only honorable thing: He handed a copy of the tape to The New York Times. The couple, too, was in clear violation of a federal statute against wiretapping. The Department of Justice, too, did the only honorable thing: They slapped the couple with a $500 fine for an infraction that should have landed them in prison for five years. Justice is sweet.

Boehner sued McDermott, but a Florida district court dismissed the claim, treating the latter’s First Amendment reasoning — that the revelation of this information was warranted for the public good — as superior to Boehner’s argument for invasion of privacy. In 1999, however, the D.C. appeals court reversed this ruling, asserting that handing over a tape was not protected speech. The court rightly concluded: “Eavesdroppers destroy the privacy of conversations. … But the damage to free speech is all the more severe when illegally intercepted communications may be distributed with impunity.” The court correctly observed that McDermott could well have reported the infraction to the Justice Department: Instead, he decided to send the tape over to The Times.

When this case went to the Supreme Court, the bench was in the process of adjudicating Vopper v. Bartnicki, a similar case in which the court decided that the First Amendment trumped individual privacy concerns. When the Court remanded Boehner to the D.C. court for reconsideration, Chief Judge Thomas Hogan denied McDermott his First Amendment claim and awarded Boehner $60,000 in damages. The Supremes are known to make a few bad decisions, and we should be glad Judge Hogan had the sense not to follow the high court’s precedent. A discontented and red-faced McDermott continued to appeal to save face. It seems persistence in the nation’s capital is rewarded: A D.C. Court of Appeals panel will revisit the case on Sept. 26.

It is certainly not unusual for a court that has already adjudicated on an issue to adjudicate on it again. After all, the nation’s justice system probably has enough time and energy to rehash old decisions. It is also not unusual for a congressman to spend a decade defending himself and tarnishing another elected representative’s reputation. God knows there’s no serious work to be done in Washington these days. But it is certainly unusual for the players in this case not to see the matter more holistically. One American congressman’s suing another is a serious matter that needs to be assessed on its political motivations and ramifications. The case does not boil down to the large constitutional questions that the parties make it to be. Rather, it’s a simple instance of political muckraking.

The question of First Amendment public good versus personal privacy is certainly important, and deserves more attention. But somehow the same Democrats that rail against the Bush administration’s wiretapping — which is conducted in the name of the public good of national security — refuse to hold Boehner’s privacy as dear as they do the phone lines of suspected terrorists. Dragging this case is just an attempt to discredit a fledgling House majority leader by spending time and effort dragging Boehner through the labyrinth that is the U.S. judicial system. I only wish the D.C. appeals panel had realized that.

One summer night in 1972, five Republicans broke into the Watergate Hotel in Washington to eavesdrop on the Democrats. It was a despicable act that rightly brought the downfall of a president and awoke a sleeping nation to the dangers of governmental corruption. Somehow, the events of December 1996 haven’t generated a similar amount of controversy. If Watergate epitomized the discontent of Americans with the executive branch as well as with the Republican Party, “McDermott-gate” should make many angry at the Democrats and at the legislative arm. I guess it’s my turn to be discontented.

Abheek Bhattacharya is a junior in Morse College.

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