Holding Back the State At the Intersection of National Security and the Leviathan

LeviathanLast Friday’s unscheduled post touched on some of the issues brought up by the recent revelations about the government’s enhanced surveillance programs. The news that the government has, for years, been collecting information on all of our email, phone calls, internet searches, etc., was a sobering reminder about the ever-present challenges of balancing national security with the civil liberties we all take as our birthright.

We don’t know a whole lot more today than what we knew on Friday. But among the interesting facts that have emerged in the last few days, perhaps the most fascinating is the identity of the source of the leak on the classified program. Edward Snowden, a 29-year-old ‘computer technician’ who worked as a contractor for the NSA, seems to have been motivated by his perception of government overreach. He appears to be acting as a whistle-blower, but it remains to be seen how the Obama administration will handle the case. In the past, as has been the case with Bradley Manning, they have been harsh in prosecuting leaks they disapprove of. (Like all administrations, however, they’ve also been adept at leaking information when it suits them.)

We’re also starting to get a sense for the Washington ‘insider’ version of events – the version subscribed to by would-be security types as well as by the administration. The justification is a familiar line from the government whenever it wants to justify aggressive action and it focuses on efficacy:

“I think it’s important to recognize that you can’t have 100 per cent security and also then have 100 per cent privacy and zero inconvenience.”

Not to draw moral equivalence, but we heard a similar line on ‘enhanced interrogation’. Left out of that framing are the costs associated with the policy. The Bush administration didn’t want to talk about the harm caused by its interrogation program, and the Obama administration doesn’t want to talk about what we lose when we’re subjected to this kind of surveillance by our government. Contrast Obama’s 2009 statements – “we reject the false choice between our safety and our ideals” – with his recent comments in defense of the NSA program.

That wasn’t the change most of us had in mind.

The dangers associated with terrorism – the perception of which our leaders allowed to balloon from a serious but manageable concern into an existential threat – are just one of the ways in which our Constitutional order has been strained in the past half-century.

Changes in our military capacity and deployment, as well as changes in the expectations of the body politic and bold innovation on behalf of members of the Executive branch, have resulted in a state of affairs most of the Founders would find arresting.

The primary mechanism given to Congress so that it might control the President’s war-making powers – namely, the power to actually declare war – has become a practical irrelevance. It might be argued that Congress still authorizes military action (and this is, strictly speaking, true) but what is indisputable is that the President has gained the upper hand in the relationship. The President can walk up to within a hairsbreadth of hostilities and then dare the Congress to stand between him and the enemy. No Congress has shown itself willing to do so.

Roosevelt signing the Declaration of War against Japan on Dec 8, 1941. On June 5, 1942, the US Congress declared war against Bulgaria, Hungary, and Romania. It has not formally declared war since. Yet, there have been over 100,000 Americans killed as a result of combat in the intervening years.

Roosevelt signing the Declaration of War against Japan on Dec 8, 1941. On June 5, 1942, the US Congress declared war against Bulgaria, Hungary, and Romania. It has not formally declared war since. Yet, there have been over 100,000 Americans killed as a result of combat in the intervening years.

In addition, the march of technology has empowered weak actors, thus turning asymmetric attack into a real threat. And while it’s true that, in the United States, more people are killed each year in motor vehicle accidents than have died at the hands of terrorists over the past twenty years, we expect government to worry about the things each of us can’t address individually. Terrorist threats fit that bill. Americans have made it plainly clear that this is a threat they want countered.

To that end, our government has invested in a vastly expanded intelligence presence both at home and abroad, expanded surveillance and imprisonment powers, implemented enhanced security screenings at airports, invaded two countries, and interrogated high-level detainees with enhanced methods – a practice referred to by most people with at least one history book and a dictionary as ‘torture’.

To the same end, the public has mostly gone along with these measures. There have been exceptions, sometimes involving immediate pushback and sometimes involving pushback years after the fact. Some of this pushback has been fierce. But in the main, Americans have been willing to accept a heightened security posture as a necessary response to a new type of threat.

We might be at the beginning of a different and prolonged effort to push back the state along this front. We’ll know in a few years – the response to the Bush wiretapping scandal was fierce, yet the aftermath didn’t seem to involve scaling back the level of surveillance. In fact, we’re now learning that, if anything, the pace quickened.

President Bush speaks to a joint session of Congress on Sept. 20, 2001. Six days prior, the Congress had passes the Authorization for Use of Military Force, still in effect today. The Patriot Act was signed on Oct. 26 of that year; an extension was signed May 26, 2011 by President Obama.

President Bush speaks to a joint session of Congress on Sept. 20, 2001. Six days prior, the Congress had passed the Authorization for Use of Military Force, still in effect today. The Patriot Act was signed on Oct. 26 of that year; an extension was signed May 26, 2011 by President Obama.

What should we make of this? It’s tempting to wonder what the Founding Fathers would have thought, or at least to invoke them against our detractors. One popular quote often bandied about – especially during this past week – is attributed to Benjamin Franklin: “Those who give up their liberty for more security neither deserve liberty nor security.” He probably never said that, but he did write in Poor Richard’s Almanac: “Sell not Virtue to purchase Wealth, nor Liberty to purchase Power.” (In my estimation, the latter is better writing anyway.) Even so, Franklin wasn’t familiar with the long-term effects of dirty nuclear bombs, so I’m not sure how much we should presume that he wouldn’t have come to a different cost-benefit calculus in today’s world.

That doesn’t matter.

As always, the solution isn’t to slavishly look to the past, but rather to learn the lessons of yesterday as they apply to today and to honor the values and principles at the heart of the American project. That project has been under assault on a number of fronts. Here a couple brief thoughts on the issue:

On Surveillance, Checks, and Balances

The Obama administration’s stance on its surveillance programs – that they’re acceptable because they’re indispensable to the fight against terrorism – is misleading and corrosive on two fronts. First, the question of efficacy is only meaningfully examined when weighed against the costs of the program. In this instance, the most significant downside is the loss of privacy by the American people, as well as the hit to American prestige. It’s not up to the President to weigh those factors, it’s up to us. Bush was fond of saying that he was ‘the decider’, but the final say on the matter should default to the people and not their government.

Second, putting aside the efficacy question, the program lacks the basic transparency required in a democracy. Our system of government is based on consent. How can we consent to a program we knew nothing about? How can our representatives in Congress consent to a program they’re minimally informed on, and about which they’re not allowed to speak publicly? It’s a despotic process and it makes a mockery of our system.

On the Government’s Authority to Act

In dealing with a threat, the government’s desire to act is constrained along two fronts: (i) it is constrained by the rights of people, partly enumerated in the Constitution, and (ii) it is constrained by the limited nature of the power entrusted to it by the Constitution.

Imagine an American picked up on terrorism charges. Leaving aside the question of what such an individual is entitled to, there’s a completely separate question of what the government is allowed to do to him. In other words, under what authority does the government act?

The British model holds that Parliament is sovereign and the government is free to act in whatever way Parliament empowers it to. The acts of Parliament might be unjust, but they cannot be illegal.

But the American model holds that the people are sovereign, and that the Congress and the government only have the authority explicitly granted to them by the Constitution. Under what authority does the government hold an American citizen indefinitely without trial? Under what authority does the government take the life of an American citizen without judicial review? Under what authority does the government intercept the communications of American citizens without a warrant? Without public scrutiny?

Too many times the government simply asserts it has precisely those powers it imagines it needs. We should know better.

* * *

One of the challenges of Constitutional continuity lies in the ever-changing nature of the world we live in. The American Revolution happened at a peculiar pivot in Western history, one in which the pace of change had dramatically quickened but had not yet entirely revealed itself. I doubt very much that the Framers of the Constitution could have begun to imagine how quickly the world would change after them. In today’s world, we’re likelier to let our imaginations run unconstrained – we can envision cities in the clouds or post-apocalyptic hellscapes. Since their day, I suppose we’ve come to grips with how unfathomable the future can be.

Even so, the document they produced has been remarkable in its ability to endure. Its continued relevance is due in great part to its selective flexibility: though the Constitution is explicit in establishing procedures, it tends to stay away from dictating specific policy. By choosing to enshrine principles like ‘due process’ and the system of ‘checks and balances’, the Framers wrote a document that could evolve as the country evolved. They couldn’t have imagined how it would change, but they knew it would and they tried to prepare it for that challenge.

Today we’re reminded that the question of how to respond to the threat of terrorism isn’t just about what works or what’s appropriate; it is also about whether the American tradition of a government of limited powers will be upheld.

Follow Pedro on Twitter @IamPedroA.

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