There is little need to retrace the Eliot Spitzer story except to say: he got caught with a prostitute and apparently was using a form of structuring (attempting to get around federal bank reporting rules) in an attempt to hide the source and/or use of funds. Although a lot of hay is being made about him being with a prostitute when he had set himself up as the hero against prostitution, the real issues here are going to center around how he was hiding money, and more importantly, why. There were almost certainly laws broken here, and we suspect there is more to come.
However, the Des Moines Register (a substantively liberal media outlet) expressed an opinion today that this whole tawdry affair should never have seen the light of day, and would not have if the current federal banking laws, in place to prevent the laundering of funds meant to support terrorists or organized crime, did not allow for independent investigation by the FBI without judicial oversight. The Register believes our privacy is at stake.
The Register trivializes Spitzer’s actions in an effort to make a point that has merit, but outside the discourse on Spitzer. The Register’s focus makes a broad and unjustifiable assumption that we have a basic right to “privacy”, which it would seem to define as “You have the right to do whatever you want without anyone knowing about it.” Unless of course you have an appropriate court order (search warrant or subpoena).
Of course, the Register is right on the point of court oversight, accountability and restraint being necessary to ensure we don’t create our own Gestapo in the 21st century. We would challenge the idea of an unbounded right of privacy. As a nation we fretted over this issue years ago, and probably stopped sometime in late 2001. For good reason.
There will always be situations that require immediate action, and that’s where we need flexibility to act, and yet maintain accountability. Private conversations or acts of conspiracy have no legitimate right of privacy. And truly, this is part of why we have courts… to sort out the details, often after the fact. Random acts of invasion by local, state or federal police are unacceptable, and warrant-less actions need to be the exception with careful judicial review. Charles Grassley (as noted by the Register Opinion) has been diligent in seeking to ensure the FBI is not working outside its authority. However, there should be a better process in place so that US Senators don’t have to spend their time on tasks like this. Court oversight is a good idea, but it requires a solid process that ensures all cases that should be reviewed are automatically reviewed. What we don’t need is a system that only works if we have judges, congressmen or journalists initiating the work.
And all of that is fine, but it doesn’t make it okay for Spitzer to have done what he did, and it should be acceptable that there was discovery during a legitimate investigation of suspicious banking activity. Even judicial oversight should allow for that. No one is above the law, and no one can be above suspicion either. Even a Governor of New York could be funding terrorists. I’m still not sure we don’t have any US Senators doing that.
So, we agree that judicial oversight needs to be strengthened. We just don’t agree that Spitzer’s situation is the way to make a case for that.