Here's something I haven't noticed in the diaries/media coverage of the NSA domestic spying operation: only people have rights. Laura Bush, the brilliant constitutional scholar that she is, asserted today the government 'has a right' to spy on people suspected of being terrorists. And while this gaff hasn't been repeated (to my knowledge) by the faithful of George II, it's hardly a minority view that the government has 'rights' in the same way that we actual people do.
The problem is that guys like Yoo and Cheney are advancing an agenda that will give the government stealth rights: powers that can't be second guessed and actions whose legality can't be challenged in court.
When someone takes the government to court for violating their rights, the balancing act isn't between our rights and the government's rights. It's between our rights and the government's interests. Like our right to peacefully assemble and the government's interest in keeping public order. No prize for guessing where the courts have been coming down in the last ten years.
What's the difference between an interest and a right? Well, an interest can be ruled illegitimate, not important enough to trump a right, and the methods used to advance that interest can come under scrutiny. A right, on the other hand, is ours regardless (or that was the idea). The government can't second guess how we choose to express ourselves or tell us our ideas are wrong. The First Amendment protects all speech, not just speech that's 'good speech.'
The talk about a 'unitary executive' that can apply its power without oversight is based on a reading of the constitution that gives the presidency a 'right' to that power. Namely, that because their reading of the Constitution says so, that power is there for the president to use as they see fit. But that's not how our government works: any government action can be second guessed by the citizens, in which case the government has to prove their case in court. Litigation has it's upsides too.
It's been well documented that this administration's use of surveillance hasn't been confined to suspected al Qaeda members, so if the actual rule of law were being applied here we could take them to court and have their actions declared unconstitutional (choose your own amendment). But instead, we have the government saying that their actions can't come under scrutiny, kind of like how our actions, protected by our rights, can't be scrutinized.
Which is a problem. So the next time anyone says the government has a right to do anything, remind the speaker that the government has interests, not rights, and if it can't show a compelling interest and a narrowly tailored way to advance that interest, they're not allowed to do it. Period.