Americans' Hollow Commitment to 'Rule of Law'

This country is proud of its commitment to the Constitution. But right now, real review is being ignored. Instead, reviewers are just checking boxes.
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Now-former CIA Director Leon Panetta, Director of National Intelligence James Clapper, and FBI Director Robert Mueller at a Senate Intelligence Committee hearing in February 2011. (Jason Reed/Reuters)

Theologian C.S. Lewis suggested that the devil's minions wanted to persuade humans to worship demons while not actually believing in them: "If once we can produce our perfect work -- the Materialist Magician," his archdemon, Screwtape, writes to a fellow tempter, "then the end of the war [against God] will be in sight."

As a nation, we suffer from a kind of Screwtapism. We are proud of our commitment to law and a Constitution. But the law we worship is hollowing out. We are becoming a society not of materialist magic but of lawless legalism.

As the surveillance revelations mount up -- IRS political monitoring, press surveillance and criminalization, mass phone-record tracking, direct access to email and social media sites -- the public seems to be responding with a yawn. Of course Big Brother is watching, Americans seem to think. What's the big?

The federal government has shrugged. "The president believes that we have in place a very strong oversight regime that includes all three branches of government," Deputy White House Press Secretary Josh Earnest assured us on June 6. The Congressional leadership is also unconcerned. "The executive branch's use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees," Senators Dianne Feinstein (D-CA) and Saxby Chambliss (R-GA) said in a joint statement the same day. "[A]nd detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law."

Strikingly enough, these two official statements are perfectly true -- all three branches of government signed off cheerfully on the data mining and phone records programs. Equally striking is the fact that this approval was entirely secret. And most striking of all is how little difference any of that three-branch review made. Except for brave protests by Sen. Mark Udall (D-CO) and my old senator, Ron Wyden (D-OR), Congress responded with a collective "whatever."

In the federal brain, the executive branch is the government's libido. It needs others' information the way teenage boys need muscle cars, and guards its own as jealously as any sullen teen. The past administration grabbed everything and admitted nothing; the current one is more polite. It offers assurance that it keeps its desires under strict control, but based on a scrupulous legal analysis we can't be trusted to read and following internal procedures that we can't be trusted to know.

The legislature is the federal ego -- it is supposed to decide wise policy and limit the executive's ambitions when they go too far. But the data program was not debated, not even strictly speaking reviewed -- it was "disclosed" in secret to those members of Congress who could work the briefings into their schedules.

The courts, our vaunted national superego, are sleepwalking as well. Take the massive records request that obtained the phone records for all Verizon customers, disclosed June 5. That secret warrant was signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court. Judge Vinson was a Tea Party hero during the health-care cases. He championed liberty as a protection against the grave threat of guaranteed health care. "If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be 'difficult to perceive any limitation on federal power'... and we would have a Constitution in name only," he thundered from the bench in 2011. "Surely this is not what the Founding Fathers could have intended."

Liberty's public lion, though, was a meek surveillance sheep behind closed doors, authorizing seizure of the phone records of millions without any showing of suspicious activity all.

Admittedly, Section 215 of the Patriot Act does not require probable cause or even particular suspicion. "Give it to us," the government must attest, "because we want it." The court then rubberstamps the application: "Yep, they said they wanted it." In its entirety, the Patriot Act is not designed to limit government or protect the people; it operates to legalize spying and keep the public in the dark.

It is hardly law at all, and the FISA Court is a court in name only. (Now, God save us, the same designers suggest another secret court to sign off on death warrants for targets abroad.)

Where in this hideous system was even the occasion for anyone to stand up and say, "the Fourth Amendment doesn't allow this"? Where was any legal analysis worthy of the name? Secret, in the executive branch; nonexistent in the legislative; forbidden to the judiciary.

Even our Supreme Court has been spectacularly unhelpful. Consider Clapper v. Director of National Intelligence. Journalists and human rights activists who believed they had been subject to acknowledged surveillance of foreigners asked the courts to decide whether the intrusion was "reasonable" under the Fourth Amendment. The Supreme Court said no; the plaintiffs couldn't prove they'd personally been overheard (secret, y'know), so they couldn't sue. The chilling effect, it said, was all in the plaintiffs' heads. Now we know we are all being watched and tracked. Expect the dialogue to shift: It will become a "generalized grievance," beneath the notice of a judge.

What about the use of phone "metadata" to track the physical movements of citizens? Could the nation use some hint of how the Fourth Amendment applies? Well, don't ask the Supreme Court. When the issue of GPS tracking came before it in 2012, the Court could have at least discussed the real problem: is it constitutional for law enforcement, without a warrant, to amass weeks or even months of data about a citizen's movements? Instead, five justices treated us to smarmy Scalian babble about the British Court of Common Pleas in 1765, deciding only that if trackers physically put an object on our cars or bodies, they need a warrant. That question (as Justice Alito noted in a tart concurrence) was already obsolete. The useful questions, like the surveillance programs in Clapper, were beneath the majority's notice.

I'm not a government hater or a reflexive civil libertarian. I believe that there is real danger from terrorists, and that most government officials are trying, in a stressful environment, to balance liberty and security. But isn't it somebody's job to notice that, day by day, American freedom is becoming something far narrower than it once was? As processing power grows, computers can crunch and store more data, leaving it available for pattern analysis. Even Verizon users whose lives are fairly boring -- including me -- know that our data sits in some god-awful NSA server farm, available when someone decides that we are "conspiring" by, say, asking questions that government doesn't like. Has any government lawyer asked when this stunning difference in degree becomes a difference in kind?

"As nightfall does not come all at once, neither does oppression," the late Justice William O. Douglas wrote in 1976. "In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air -- however slight -- lest we become unwitting victims of the darkness."

As twilight falls, a brave few have spoken up as best they can: Wyden, Udall, FBI director-designate James Comey, and Harvard Professor Jack Goldsmith. Dozens of military lawyers threw themselves on the military-commission grenade. President Obama's Office of Legal Counsel considering the Libya intervention. But there are thousands of lawyers in government (Obama found one to sign off on Libya) -- at Langley and NSA and State and Justice; one of them, a former professor no less, sits in the Oval Office.

Future generations may marvel that there was once a time when "law" bound government itself. Some of them may ask, "When the darkness fell, where were the lawyers?"

They were on the job, our materialist magicians, thousands of them. So were our executive officials, our legislators, and our judges.

Most of them just checked the box.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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