Despite Obama's campaign promises of renewed transparency and accountability in the executive, his Department of Justice's motion did not withdraw the "state secrets" defense promulgated by the Bush administration. In fact, it reiterated and then expanded the argument, citing "sovereign immunity" and claiming that the PATRIOT Act bars any lawsuits of any kind against government wiretapping programs unless the government "willfully discloses" the intercepted material.

To be sure, a public promise by the Obama administration declaring never to leak recordings of one's phone sex to CNN Headline News is  somewhat comforting. But it is a cold comfort, barren of credibility, credulity, and meaningfulness.

The inauguration this January past was a legitimate cause célèbre. We have reason to be proud of our new leader, who, by all accounts and appearances, is a thoughtful, intelligent, and diplomatic gentleman. Americans, especially Americans who voted for him, may be inclined to trust and support Obama, as he seems the consummate professional, especially when compared to his predecessor.

But the man matters not. The problems with warrantless wiretapping are not personal, they are structural. Were Christ Himself to descend from the Heavens, with manna in one hand and a wiretap in the other, a prudent public would still recoil.

Wiretaps are indispensable tools in this electronic age. A total ban would deafen our defenses when we need to listen the most closely. Moreover, it is important that the executive branch be given great latitude to act in the nation's defense. Agility is a necessary condition for prevention, especially when the enemy is so fleet of foot.

But none of these general principles can be extended to justify these exceptional claims. The structural separation between the branches was codified in the Constitution for a reason. The FISA Court--a body of magistrates with security clearances charged with approving warrants for wiretaps--is hardly an unfair standard of review to require. Of the nearly 20,000 requests made since 1978, only five were rejected for insufficient cause. Is it too much to require that the government seek the easy approval of this profligate Court before invading the privacy of millions of innocent Americans?

Some proponents of warrantless wiretapping--perhaps including some newly  converted Obama supporters--argue that there is nothing wrong with these wiretaps as long as you have "nothing to hide", and that if you do, you don't deserve the protections of privacy anyway.

But this excuse misses the point. The problem with warrantless wiretaps is not whether or not one has something to hide. The problem is that one branch of the government can do something that cannot be checked by any coequal branch, eliminating the carefully constructed Constitutional provisions of our Founders. The problem is that state surveillance has deleterious effects your liberty even if you have nothing to hide. If a police officer stood ceaselessly at your side while you were on your phone with your grandmother, your behavior would doubtlessly change, even if you were talking about nothing but knitting. 

As the privacy theorists Daniel Solove and James Rachels (among others) have written, privacy protects the intimacy required to live life as we want to live it. Wiretapping wrecks not only this, but also the structure of oversight that both limits government power and (perhaps more importantly) the empowering autonomy that comes from being able to control who hears what you say. 

Liberty and privacy are both sides of the same coin. Both are implicated here. Bush hacked away at them with an axe. We all thought Obama was going to come in and fix it, but instead he took one look and, in his perfectly practical way, decided a chainsaw would be more effective instead.

The damage done by warrantless wiretaps is the same no matter who is listening. President Obama won his support partly on the promise of a new era of responsible governance. He would do well to reconsider this motion if he wishes to keep it.