The easy shot against Glenn Greenwald’s No Place to Hide: Edward Snowden, the NSA and the U.S. Surveillance State would be to dismiss its warnings as immoderate and overwrought. “Converting the Internet into a system of surveillance,” he declares nearly off the bat (6), turns it “into a tool of repression, threatening to produce the most extreme and oppressive weapon of state intrusion human history has ever seen.” Similarly, “[t]he US government had built a system that has as its goal the complete elimination of electronic privacy worldwide.” (94) These are bold claims on which to deliver. And yet, piling evidence atop evidence, Greenwald does.
The report presented to the President on surveillance and privacy yesterday makes two things clear: First, while many of the most important recommendations are legislative, the Administration could implement a broad array of them without waiting for Congress. Second, no Administration should be trusted to. President Obama now has an opportunity to do what no modern Chief Executive has done: shrink the powers of his office, lashing himself and future occupants of the Oval Office to a statutory mast. That would be a legacy.
A Reply to Stephen Knott’s “War by Lawyer”
Proponents of the Global War on Terror are often quick to instruct us that terrorism represents a new threat demanding new thinking—both tactically and legally—except, that is, when it better suits their argument to invoke precedent, in which case terrorism becomes just another act of war to be fought like wars always have been. Steve Knott is one of the few advocates of a militarized terrorism policy to whom we can look for consistency: He believes terrorism is an act of war and that our response to it is war, simply. The problem is that terrorism is different.
American conservatives have long argued that the judiciary should defer to the elected branches of government on matters of policymaking, correctly observing that the practice of judicial deference dates to the founding of the nation. Even those founders who favored a somewhat “elastic” interpretation of the Constitution condemned the notion of “legislating from the bench.” As Alexander Hamilton noted in Federalist #78, the judiciary possessed neither the purse nor the sword, and would retain its legitimacy due to the fact that judges possessed little discretion and were required to follow precedent, all the while observing a strict separation from the elected branches of government.
It is important to keep this in mind in light of the recent National Security Agency surveillance “scandal” which has led to calls for increased judicial oversight of the nation’s intelligence community.
Far from being a cornerstone of our national defense, the Foreign Intelligence Surveillance Act (FISA) has proved to be an even worse idea than opponents feared when it passed in 1978. By providing judicial pre-authorization for many of our national security bureaucracies’ actions, it is habituating them to dysfunctional practices. By fostering the creation of a secret body of common law regarding civil liberties, it is perverting the American legal system. To repeal it, however, would require confronting the reasons why the security bureaucracies demanded the law in the first place and why they are increasingly attached to it.
Randy Barnett has an interesting op ed in the Wall Street Journal arguing that the NSA’s seizure of voluminous data on U.S. citizens was unconstitutional and that the approval of the seizure by the secret FISA court was also unconstitutional.
Randy makes several important points:
1. “By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call ‘informational privacy.’”
2. The FISA Court’s approval of the “blanket seizure of data on every American” represents “indiscriminate data seizures” that “are the epitome of ‘unreasonable,’ akin to the ‘general warrants’ issued by the Crown to authorize searches of Colonial Americans.”
3. The program’s approval by the FISA Court violates due process, because “secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.”
These are powerful arguments and the entire essay is well worth reading. I am not entirely sure if Randy is using an originalist methodology here. If so, here are my thoughts regarding each of his three points.