PARIS — The U.S. Supreme Court has just ruled by a 6-3 majority that actions of U.S. law-enforcement agents outside the United States are not subject to the restraints imposed inside by the Bill of Rights.
Specifically, the Supreme Court finds that American agents abroad are not bound by the Fourth Amendment guarantee of the right of the people to be secure against unreasonable searches and seizures.
The Supreme Court holds that American national interest is superior to a foreign person's claim to security in his or her person and house, and that an American agent abroad need seek no warrant for his acts. This being so, no restriction is to be placed upon the actions of American agents that is not "imposed by the political branches (of the U.S. government) through diplomatic understanding, treaty or legislation."
The decision is one more step by American legal officials to assert an internationally sovereign U.S. authority. By this, U.S. law is not only applied beyond U.S. borders, to persons not U.S. citizens--and, as in this ruling, who may have committed no U.S. crime, or no crime at all--but this also is done in disregard of the constitutional limits upon law enforcement inside the United States.
How have Americans and their courts arrived at such a position? There seem to me two elements in the explanation. The first is the legalism of American society, which historically is the product of that concern for constitutional order at the roots of the American federal union. There is a preoccupation with legal codification and definition throughout American life and government.
Running in parallel with this has been an American puritanism that rejects the deliberate hypocrisy practiced by other nations in their secret operations. No one in Britain or France thinks that their secret services do not sometimes break the law of other countries or commit acts that would be illegal in the home country. These things are thought justified by \o7 raison d'etat\f7 , and acceptable so long as the services responsible are under the responsible control of elected officials.
Only America expects legally to define, codify--and proclaim--the authority of its clandestine services to break the law of other countries and to disregard international law. Only the United States is capable of conducting "covert" operations abroad (like the Contra program) while openly debating them in Congress.
This legalism and rejection of hypocrisy is often pronounced as a great strength of American democracy. In fact, it produces a steady deterioration in the standard of conduct legally permitted the U.S. government and its agents.
When you codify and formally legalize \o7 raison d'etat \f7 you end, as the United States now has done, in legalizing forms of murder (complicity in political assassination), housebreaking and theft (in the present case), and acts of international aggression and undeclared war.
The force at work behind this obviously is nationalism: the belief that "We're No. 1"--and the rest are zero. It is an aggressive assertion of national pre-eminence, with pernicious--anarchic--implications for the international community.
It is time indeed for a "political branch" of American government, the Congress, to restore to the practice of American government that "decent respect" for the interests and opinions of the rest of mankind that the nation's founders enjoined upon their fellow citizens.