It’s starting to seem that with every news cycle, a new Obama scandal is unearthed and brought to the light of day. Any one of the many scandals that have been revealed would be disturbing to anybody with any sense of fair play or desire for good government. All of them together are making it apparent to the American people that our government is no longer merely corrupt, unethical, and of questionable constitutionality, but has crossed the line into blatant lawlessness, a frank disregard for the rule of law and open contempt for our organic and foundational law.
But it’s not just the Obama administration that we’re talking about here. Much of this current scandal is also applicable to, and indeed finds its root within, the Bush administration as well. What’s ironic is that this lawlessness has been made possible, in part, by all these “law and order conservatives” out there. You know the type I’m talking about: the people who think that talking about constitutional rights is a codeword for “supporting terrorism;” the folks who automatically trust that everything the government does is right, and who think that there could never, ever possibly be a conspiracy against the liberties of the American people. In short, the Right’s own version of the “low information voter,” the type of “conservative” that the Founding Fathers warned us about as a threat to our liberties. Thanks to them, our government has been enabled to go beyond its legitimate, constitutionally granted powers and into the realm of the panopticon state, all for the supposed purpose of “keeping us safe.”
I am all for using the technology that we have to do the job of keeping America safe – by which I mean, applying it to hostile foreigners and their contacts and/or compatriots in America for whom we have reasonable cause to be suspicious. But again, foreigners residing in other countries don’t have American constitutional rights to begin with, and Americans who are potentially collaborating with them can be dealt with via entirely constitutional means – the 4th amendment does not prohibit all wiretapping, searching, and seizure, it merely requires that these activities be conducted under specific, relevant circumstances. Police agencies have to have a reasonable cause for suspecting that someone is engaged in illegal activity and need to be able to convince a disinterested judge to allow them to search and seize what they say they need to so as to find the specific evidence they believe will exist. If the police and other security agencies are competent at their jobs, they should be able to do this without recourse to unconstitutional “fishing expeditions” into everyone else’s private information. The problem comes when they do this, and then try to justify it with nebulous “safety” arguments.
Frankly, if I have to choose between the Constitution or the “safety” that comes from an omniscient, omnipotent state – I choose the Constitution. This should be a false dichotomy between which we should not have to choose, since we should be able to find a middle ground where security agencies can operate within the Constitution and still protect us from foreign and domestic threats. But if we’re going to be placed in such a situation, I’m willing to take my chances with the Constitution.
Of course, the NSA surveillance scandal has provided ample opportunities for partisan hacks in both parties to distract from the real issue – that of the federal government violating the 4th amendment and treating every single person in America as if they were potential terrorist threats who need to be recorded, tracked, and watched “for our own good” – and to use this revelation as an excuse to score some points on the other guys. “Obama did it!” “Bush did it too!” “Nyah nyah!” “Waaah!” In fact, we’re finding out that those on the Left, who hithertofore never found a wiretap that they agreed with, are suddenly on-board with the destruction of our privacy rights. The fact of the matter is that BOTH the Republicans and the Democrats are responsible for helping to make total surveillance of all Americans a reality. Yes, the implementation and reach of these programs have apparently accelerated on Obama’s watch, but Bush put much of this into place during his tenure. Indeed, I was hearing about Total Information Awareness (TIA), an integral part of the US government’s spying on its own citizens, as early as 2004. Members of both parties are to blame, just as members of both parties today are shamelessly trying to justify illegally spying on the American people.
The bad arguments abound, too. If you start squawking about “the Constitution,” that makes you a “Ron Paulian” – as if that would automatically discredit the importance of the spying revelation – who obviously doesn’t understand the existential threat we face from terrorists lurking around every corner. I think I’ve made it abundantly clear in the past, however, that I’m not a Ron Paul supporter. However, if we’re to the point where Ron Paul supporters are the only people who care about our constitutional rights, then we might as well pack it in, because we no longer have what we’re supposedly defending from the terrorists.
Then, of course, are the efforts underway by elements from both sides of the aisle to undercut the impact of the NSA revelations by shooting the messenger. Apparently Edward Snowden (the whistleblower who broke his story to the Guardian) exaggerated his income during his tenure at Booz Allen Hamilton, and some seem to think that because Glenn Greenwald (the journalist at the Guardian to whom Snowden went) is a homosexual, this means that the Snowden case is “really” about Chinese espionage and that Snowden is a Chinese agent. All of this seems intended to cast doubt on the veracity of the information given to Greenwald by Snowden. Of course, we should keep in mind that Snowden was not actually the first person to blow the whistle on the NSA domestic spying. A retired NSA analyst actually tried to do so earlier, only to see the story fail to interest most of the media spear-catchers. Further, at least two US Senators have also basically come out and said that the NSA is spying on Americans, as far as they are legally able to say without violating their own oaths of secrecy. So yes, the information has legs, even if the people who finally got it out into the public eye are themselves a bit questionable.
We should also note, however, that at least at the time of this writing, we don’t have any evidence that Snowden has committed treason in the “actual definition” sense of the word. All we know is that he broke open the news of a spying program that is supposed to be used against our enemies overseas, but is also being used against the innocent population of this country as well (something which the rules governing the implementation of the NSA’s spying are said to specifically forbid). We do not, however, know that he has given any foreign government or organization information about any of our security or intelligence resources. Granted, this may change as time progresses, but for now, we do not know that he has. He broke the law, and he did something the government doesn’t like, but doing things the government doesn’t like isn’t necessary treason. Yet.
Then you have people who argue that such broad-based NSA snooping into the emails and phone calls of every American is legal because, well, it just is. There are rules put in place that make it legal, and the agency’s lawyers have said that such snooping doesn’t violate the Constitution, so there. Because, as we all know, extra-constitutional administrative rules and government lawyers are a higher arbiter of what is and is not constitutional than the text of the Constitution itself is. As with the argument that infringements on the Constitution cease to be infringements just because a judge says so, I am dubious, to say the least. I do not hold to a gnostic view of the Constitution, after all, one which says that the meaning of the Constitution can only ever really be known by a select few “experts” who have a higher plane of knowledge than all the rest of us. Instead, I hold to a demotic view of the Constitution which says that the average person of even marginal intelligence and sound mind can look at the plain wording of the document and understand what it means and what its intentions are.
Naturally, the “law and order conservatives” have been trotting out several variants of the “if you’re not doing anything wrong, then you don’t have anything to worry about” argument. Unfortunately, that way of thinking is completely backwards from the mindset of both our Constitution and traditional American common law. The onus of proof is on the government to demonstrate that there is a sound reason to search (or in this case tap) a private citizen’s papers, property, and communications. It is not on the citizen to have to “prove” their innocence. The 315 million Americans who are not terrorists or terrorist supporters do not have submit to universal tracking and surveillance in order to “prove” that they’re not terrorists.
If someone wants to make the “if you’re not doing anything wrong” argument, then let’s take it all the way, and apply it to the people making the argument. Why not allow the government to install video cameras and microphones in every room of your house? After all, who cares about your personal privacy, if it means there’s a googleplex-to-one chance that we might catch a terrorist some day? Why not allow the government to send in random, armed search parties to go through your house and property whenever they feel like it? Why not let the police root through your 13 year old daughter’s underwear drawer? After all, citizen, you don’t want the terrorists to win…do you?
And that’s really what the crux of the issue here is – our right to privacy. The courts were correct, back in the 1960s and 1970s, to affirm the right to privacy as drawn from the Bill of Rights, even if they were incorrect in later applying this to the abortion issue, specifically (abortion is no more a “private” act than is murdering a houseguest sitting in the privacy of my own home would be). One of the fundamental liberties of every individual is to have their own affairs remain just and only that – their own affairs. What you and I and anyone else do when we are not in the public sphere is nobody else’s business, so long as we are not hurting someone else or imposing it onto other people. This remains true even when we don’t like or agree with what they are doing.
That’s why we have the 4th amendment. It is specifically there to prevent the government from imposing itself into your private arena, your res privata, and exposing them or using them against you at some later date, without having a very good reason for doing so. The mere suspicion that “somebody, somewhere” might be up to something, so we have to keep fishing until we find it is not enough. It’s what this amendment is designed to protect against. In short, it’s meant to keep the government from treating you and me like criminal suspects when it has no actual evidence that would justify this.
And it’s shameful the way we have let the government get away with reducing what qualifies as “privacy” until it encompasses nothing more than the four walls of your home and the inside of your car. Even if you have a conversation in a public place with another person that both of you intend to be private (whispering, sitting at a private table, etc.), it doesn’t count as private. If you buy something at a store, your transaction is not considered private. If you drive anywhere, you can have a GPS stuck to your car without knowing it, because that’s not “private.” Privacy cannot simply be negated by “being in a public place.” This is ludicrous. Privacy is a function of the inherent right of a person not to have their affairs aired to everyone else, and especially to the government – not of what physical location they happen to be at the moment. Just because someone is at a public place like a restaurant or a city park should not mean that they are considered to be in “the public sphere” and therefore waive their 4th amendment rights simply by being there.
It’s a shame that more Americans are not bothered by the rampant intrusions against our 4th amendment liberties – and these go far beyond the NSA spying we’ve only just learned about. Have we reached a point where the Constitution is optional, not just in the eyes of the government (which has held that view for decades), but also the average American? I sincerely hope not.
Tim Dunkin is a Guardian columnist.