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September 1, 2015 / 17 Elul, 5775
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Principles Under Attack

Two recent developments would seem to indicate that pivotal fundamentals to the growth of America as the world’s paradigmatic democracy are under assault by overeager governmental officials.

Consider: a Texas state appeals court overturned the 2010 money laundering conviction of Tom DeLay, the former Republican majority leader of the U.S. House of Representatives. The court’s decision makes clear that prosecutors came up with a novel interpretation of the criminal laws barring money laundering so as to include what Mr. DeLay freely admitted to doing – taking corporate contributions made to the Republican National Committee and passing them on to Republican candidates for the state legislature in 2002.

While corporate contributions are certainly deemed improper by Texas civil statutes, they had never before been considered to be illegal in the criminal sense. Indeed, money laundering was theretofore thought to relate exclusively to disguising money tainted with criminality.

Yet Mr. DeLay was spectacularly successful in his use of this ploy through which he was trying to cement Republican control of the Texas State Legislature and thereby control redistricting for federal elections. And a Republican-dominated Texas State Legislature did indeed carve out districts favoring Republican candidates. By most measures, Mr. DeLay redirected Texas politics to favor Republicans through the skillful gathering and distribution of money. One can understand why zealous prosecutors would seek to challenge that, without assuming a purely political motive.

But as the court put it, quite simply, “The fundamental problem with the state’s case was its failure to prove proceeds of criminal activity.”

Plainly, we all have a general interest in the neutral application of the criminal laws. But it is especially important if the threat of criminal sanction is arbitrarily introduced into the political system – our life’s blood – for partisan reasons. Again, this is not to say that Mr. DeLay deserves an award for what he did. But it is one thing for a politician to push the legal envelope while not crossing the line drawn by the criminal law. It is quite another for officials with prosecutorial powers to be unduly creative about it.

We also found troubling the news that the federal National Security Agency – distinct from the National Security Council, which advises the president on national security matters – has the capacity to neutralize the intricate special protections, usually referred to as encryptions, we all thought shielded the privacy of ordinary communications.

Citing documents released by the notorious Edward Snowden, The New York Times reported that for years the NSA colluded with technology companies to maintain the ability to eavesdrop on what was widely considered private information. According to the documents, the NSA developed superfast and customized computers to break codes and otherwise penetrate the encryptions through embedding “back door” mechanisms.

Notwithstanding the remarkable explosion of technology, privacy rules bar the purposeful targeting of Americans’ e-mails or phone calls without a warrant. But the temptation to engage in inappropriate intelligence gathering makes the potential for mischief very real.

We’re living in an age that presents enormous new challenges to our time-honored principles. But equality before the law and the right to privacy are what made the U.S. the country it is today. Surely it is worth whatever effort it takes to ensure that those principles will withstand both technology and terrorism.

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