It is melancholy to observe how swiftly Americans have been divided by federal surveillance. A new poll finds that a majority view Edward Snowden as a whistleblower, and a plurality of respondents say "government goes too far in restricting civil liberties in the name of anti-terrorism." These worrywarts need to be reminded of all the reasons to trust their government. What reason do any of us have to doubt that President Obama can be fully trusted on this matter?
Numerous Obama Administration officials say that they're acting within the law, that they're careful to protect the Fourth Amendment rights of Americans, and that they'd never abuse their power. Would elected officials really break their promises or lie to the public? What precedent is there in U.S. history to suggest that politicians would violate their oath to uphold the Constitution? Would the government really abuse civil liberties to fight terrorism of all things? And what reason has Obama himself given us to think that he'd brazenly break his word? Besides, the NSA, CIA, and FBI wouldn't dare contravene the law while under the supervision of a Constitutional law expert with Obama's reputation for investigating and prosecuting lawbreakers. Seeing how he dealt with Bush-era torturers, would you break the law on his watch?
Some Americans worry that the NSA conducts its surveillance in secret, under the supervision of a secret court with secret rules. But as Hendrik Hertzberg writes, "I still don't know of a single instance where the N.S.A. data program has encroached on or repressed any particular person's or group's freedom of expression or association in a tangible way. Nor have I come across a clear explanation of exactly how the program could be put to such a purpose." Yeah. How would you even abuse a vast database detailing the private communications of Americans?
Sure, the program has been conducted in secret for years, but does anyone really think we wouldn't know immediately if there were problems? The president staked his word on running the most transparent government in history! He has specifically promised to protect whistleblowers -- who would surely emerge to document NSA abuses, confident that they'd be shielded from prosecution, or at least that they'd be able to get asylum somewhere without being vilified in the media. It's true that the Church Committee documented abuses totally unknown to the public for decades after they happened. But although we call the generation that committed those abuses the "Greatest," there's good reason to believe today's leaders are more morally upright and much more able to resist being corrupted by secrecy and power. Just think about it. Doesn't it intuitively seem like we're better than our elders, and that the kinds of abuses that happened in the past couldn't possible happen now? Let's go with our gut.
"Even if the program could be misused in that way, for it to happen you would have to have a malevolent government," Hertzberg continues, "or, at least, a government with a malevolent, out-of-control component or powerful official or officials." Indeed, some low-level guy unknown to most Americans could never steal this data and flee to China or Russia. And obviously, all abuses of power are perpetrated by malevolent, out-of-control sociopaths. Well-meaning leaders never perpetrate abuses, and miscarriages of justice are always deliberate and never mistakes. Institutional arrangements and the degree of public scrutiny to which they're subject aren't even important unless you've got guys like Richard Nixon or J. Edgar Hoover running things. And what are the odds of a pair like that becoming, say, president and FBI director at the same time? Listening to civil libertarians, you'd swear that America was capable of building torture chambers. What a bunch of alarmist crazies.
What you have to understand is that rules are in place to protect your rights. Sure, the government has the technical ability to look at domestic and not just foreign communications; and it has the technical ability to look at the contents of your communications, not just the metadata. But do you really think that NSA personnel would break the rules? Is there any precedent to suggest they'd break the law, or that people who broke surveillance law would be granted retroactive immunity? And if they just focus on metadata, what compromising material on innocent people could they possibly find? How many members of Congress would gladly hand over their metadata to any reporter who asked? Dozens? Hundreds?
After all, even if a malevolent leader was in charge of the surveillance state, it isn't like innocent people would have to worry. Save terrorists and criminals, who has anything to hide? To worry about public officials being blackmailed by a Snowden type who wants to make a dishonest buck rather than a headline is to assume that our senators, governors, and judges have dark secrets -- as if a substantial part of our ruling class is out cheating on their taxes or having affairs or ingesting illegal substances or breaking campaign-finance laws. Cynics!
Regular citizens who have nothing to hide needn't worry about the surveillance state at all. Daniel Solove writes:
... suppose government officials learn that a person has bought a number of books on how to manufacture methamphetamine. That information makes them suspect that he's building a meth lab. What is missing from the records is the full story: The person is writing a novel about a character who makes meth. When he bought the books, he didn't consider how suspicious the purchase might appear to government officials, and his records didn't reveal the reason for the purchases. Should he have to worry about government scrutiny of all his purchases and actions? Should he have to be concerned that he'll wind up on a suspicious-persons list?
Even if he isn't doing anything wrong, he may want to keep his records away from government officials who might make faulty inferences from them. He might not want to have to worry about how everything he does will be perceived by officials nervously monitoring for criminal activity. He might not want to have a computer flag him as suspicious because he has an unusual pattern of behavior.
But this assumes that government officials make faulty inferences. We're talking about highly trained surveillance-state professionals who are always fully cognizant of the power they wield and the seriousness of mistakes. Just look at the unparalleled success that is the No-Fly List. In the absence of any hard numbers about how often people are put on it erroneously, it's only fair to assume that it doesn't happen very often, and surely anyone who is wrongly classified is able to easily remedy the mistake, just as surely as it's very easy to correct mistakes made by the IRS or by federal prosecutors whose convictions are called into question by DNA evidence.
Watching the behavior of the parts of the federal government that operate with relative transparency, can anyone doubt the eagerness of huge bureaucracies to promptly acknowledge, address, and remedy mistakes? Just imagine how much more diligent and conscientious employees of a secret bureaucracy must be. There's certainly no reason for citizens to avoid using words in private emails or making innocent purchases that might appear suspicious.
Like David Simon said, intrusive surveillance has long been used in the War on Drugs. That should definitely make you less upset about the NSA. After all, if there's any government effort that demonstrates how heavy-handed tactics can achieve important goals without infringing on civil liberties, it's the highly successful eradication of narcotics from our society. If civil libertarians had succeeded in stopping the War on Drugs there might still be drug gangs running large chunks of Latin American countries and waging war on our streets. With all we've gained, thank goodness the Fourth Amendment was weakened.
In the final analysis of NSA surveillance, blogger Jennifer Rubin of the Washington Post puts it best. "This is very straight forward. It is therefore somewhat shocking (maybe we shouldn't expect more) that lawmakers (not to mention pundits) got themselves riled up, claiming gross constitutional violations," she wrote. "The administration, which failed to adequately explain the program, is partly to blame. But there really is no excuse for lawmakers charged with national security obligations to be so ignorant of both the law and the facts. They have a serious obligation to conduct oversight and to keep the American people safe and informed. In running through the halls with their hair on fire, they show themselves, not the program, to be deficient. If anything this episode should remind us to exercise some quality control -- when it comes to voting."
Yes, as Rubin explains, Congress can only fulfill its oversight responsibilities when its members stop paying so much attention to NSA and the possibility of Constitutional violations. And we should make sure to elect a Congress that does much less to challenge these programs.
That's the best way to safeguard our liberty, especially if there's ever another terrorist attack, which the national-security state would never overreact to or use as an excuse to tap into data that it stores but isn't presently allowed to look at. No, these powers will never, ever be abused.
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