The President assures us that no one is listening to our calls, but does that settle the debate?
“Progress does not compel us to settle centuries-long debates about the role of government for all time, but it does require us to act in our time. For now decisions are upon us and we cannot afford delay. We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. We must act, knowing that our work will be imperfect. We must act.”
President Obama, Second Inaugural Address, January 21, 2013.
“Progress” requires the government, above all else, to act, the President told us in his Second Inaugural. Even imperfect government action is preferable to debates about government’s proper role. Adherence to principle about the limits of government is a form of absolutism, a kind of political spectacle akin to name-calling. We cannot afford delay, the President told us. The government must act.
And act it has.
The IRS has acted to hobble the First Amendment rights of the President’s critics to lawfully organize and express their grievances against the government, the DOJ has acted to impair the First Amendment rights of reporters by monitoring their phone lines and alleging before judges that their reporting is felonious, and the NSA has brushed aside Fourth Amendment concerns against unreasonable searches and seizures by compiling massive records of our phone calls. Such are the fruits of government that believes it must, “above all else,” act.
In view of these actions, perhaps it’s worth revisiting that centuries-long debate about the role of government that the President so lightly dismissed on that cold January morning.
The bias for action that the President expressed isn’t merely his personal preference. It is a characteristic of government. Even a government mired in gridlock, we have learned, is busy doing a million things, some of them distasteful and constitutionally dubious.
Government has enormous power and that power is being exercised daily, not exclusively or even primarily by Presidents and Members of Congress, but by millions of Executive Branch employees who wield the power that government has amassed. That, in essence, is the Administration’s defense in scandals surrounding the IRS: low-level career employees of the IRS conglomerate’s Cincinnati branch decided on their own to target conservative groups. Meanwhile, another group of that agency’s employees organized lavish parties on which they squandered tens of millions of dollars.
If even the President doesn’t know what’s going on in the branch of government that he runs, could that be a sign that government has gotten too big?
President Obama did not invent big government. It is the product of decades of decisions by Presidents, Congressmen and judges of all political persuasions. If Democrats are more likely to expand the government’s power to tax and to create entitlement programs, Republicans are more likely to increase military spending and to enlarge the power of intelligence agencies. Together, they have built a colossus.
The founders may never have envisioned that result, but they well understood the impulse that produced it. Governments are not self-restraining; they forever seek to enlarge their power. The founders sought to suppress this impulse by writing a Constitution that both created a federal government and constrained its authority. Their goal was to enable a free people to establish a government that would not curtail its people’s freedom.
Their efforts have yielded mixed results. The founders themselves tolerated slavery, an institution whose nefarious effects still have not been entirely expunged. And the government they sought to restrain has nonetheless grown at the expense of individual liberty.
The President sees this as a mark of progress. In his second inaugural, he called on us to understand the Declaration of Independence’s familiar Lockean embrace of “life, liberty and the pursuit of happiness” as meaning that collective action (which he uses as a shorthand for government action) is foundational to individual freedom.
“Today we continue a never-ending journey to bridge the meaning of those words with the realities of our time. But we have always understood that when times change, so must we; that fidelity to our founding principles requires new responses to new challenges; that preserving our individual freedoms ultimately requires collective action.”
This, of course, is the opposite of what the founders intended. They believed that individual freedoms were antecedent to government and that government put those freedoms at risk. The constitutional project involved shielding individual freedoms from the threat of collective action by the government. But times have changed, the President said. Bridging “the meaning of those words with the realities of our time” leads him to conclude that our individual freedom now depends on collective (i.e., government) action.
So it comes as no surprise when President Obama, like President Bush before him, argues that government must encroach on our liberties to preserve them. He defended two classified programs. The first, called PRISM, collects the emails, file transfers and other information from major internet companies on persons, so long as the agency is 51 percent certain of the “foreignness” of those persons. The second compiles the phone records of tens of millions American cellphone users According to the President, these programs constitute “modest encroachments on privacy.”
“It’s important to recognize,” the President also said, “that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience.”
That statement is both self-evident and unhelpful. But let’s think it through a bit. I’ll ignore the insulting phrase “zero inconvenience” and make two points. The first and most obvious is that the government has not – and cannot – deliver “100 percent security.” There have been three terrorist attacks on Americans during President Obama’s tenure so far – Fort Hood, Benghazi and Boston.
There is a second flaw in the President’s 100 percent safety vs. 100 percent privacy formulation. He is, in essence, arguing that if we’re willing to yield some of our privacy in exchange for security, then we should be willing to yield as much of it as the government chooses to take. That is simply not the case. There are lines the government cannot cross, even in pursuit of security.
The President assures us that the government hasn’t crossed one potential line, by eavesdropping on our cellphone conversations. “Nobody is listening to your telephone calls,” he said. It’s a good political move on his part, since polls show that the public is divided in its views on the government’s collection of their phone records, but would likely strongly oppose the government recording their calls.
I take him at his word when he says that the government isn’t listening in on our phone conversations. If nothing else, I can’t imagine that it has the technical capacity to do so. But it’s important to note that the President did not say it would be unlawful or unconstitutional for the government to make such recordings. He has so far declined to tell us what he thinks the appropriate limits of government are. It is time that he and Congress spelled that out.
In seeking to define those limits, I would propose that they begin with the Fourth Amendment:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
I am by no means a legal expert and I know that the Fourth Amendment has given rise to a very complex and still evolving body of case law, but the principle here seems straightforward and sound: I have a right to expect that the government isn’t snooping into my person, house, papers and effects [including telephone records]; if the government wants to gather information about me, they need to get a warrant, which requires them to swear or affirm that they have probable cause to believe that I’m involved in something shady; and that warrant has to be particular to me and the stuff they’re looking for.
That last point is critical, in my view, because the government reportedly obtained a warrant to collect our phone records from the Foreign Intelligence Surveillance Court (FISC), a secret body that reviews requests from intelligence officials. The Fourth Amendment requires that warrants be specific, but that court issues warrants authorizing intelligence officials to collect information about people who are not suspected of any crime.
Just how routinely does FISC grant government requests? According to an analysis by Salon, very routinely indeed. Since 2001, the FISC court has rejected a total of just 10 applications, while approving thousands. It denied just one application in 2009 and approved 1320. Since then, it has not denied a single one. It approved all 3,983 applications submitted from 2010 through 2012. That suggests to me, at least, that FISC has failed to strike an appropriate balance, particularly when it approves applications that are not specific to persons suspected of illegal activity.
It also suggests to me that, despite what the President said last January, it might actually be helpful to re-engage in the “centuries-long debates about the role of government.” Maybe it’s time to require the government to think a bit more before it acts, rather than yielding to the conceit that it must act constantly and without sufficient regard to our liberties because “we cannot afford delay.”
We could use a little delay, a little reconsideration, debate and reflection about how to strike a more appropriate balance between individual liberty and government power. I have no illusions about how this debate might turn out. Concerns with the NSA’s activities seem to be the preoccupation of what Politico calls “Liberal-tarians” – an unusual collection of progressive Democrats and libertarian Republicans like Rand Paul (R‑KY) and Mike Lee (R‑UT). Leaders of both parties, like the President, are so far sticking with the NSA.
It’s a debate nonetheless worth having.
A very thoughtful analysis which is expected from Mr Badger. Technology races ahead and legislation, policy formulation and politics cannot keep up. Somehow we need to have a thoughtful national conversation on how to balance safety and security with privacy and the Constitution. It is hard to see how our current leaders will manage this feat. They lack, as former President GHW Bush would say,“that vision thing”.
I hate the idea of cameras following me on the street. I applaud when these same cameras capture the images of the Boston bombers. God, I miss the rotary dial telephone!
Michael Lewan
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