[Reprinted from The Baltimore Sun, July 2, 2013]
In an age of surveillance, has government of the people perished?
Even with all of the monuments, markers and preserved artillery pieces, the pastoral calm of south central Pennsylvania still dominates the battlefield where some 160,000 Americans clashed in the continent’s most epic and consequential military confrontation. The familiar images from three raging days of furious and deadly battle for America’s soul still stand in stark contrast to the undeniable tranquility of the setting. Yet it was here that the union was most famously preserved, and where Abraham Lincoln, in his eloquent address, ultimately challenged the nation to establish a new birth of freedom based on its founding ideals of liberty and equality. During this week’s 150th commemoration of the battle, we could all do well to be mindful of Lincoln’s call for resolve that Gettysburg’s dead shall not have died in vain.
Today we find that the National Security Agency, dedicated to the collection and analysis of foreign communications, has routinely engaged in covert surveillance of the American public’s phone and internet usage. That it took a criminal act to reveal this is demonstrative of how little “government by the people” was involved in the development of this policy. It was conceived and carried-out entirely in secret and apart from the deliberations of a democratic republic, and was thus undiscoverable in the normal processes of government.
We are told that this was all done in the name of national security; that intercepted private communications are not read except as part of reacting to a cognizable threat; that a secret court must approve surveillance; that there is meaningful Congressional and administrative oversight; that legitimate terrorist threats were thwarted by virtue of these measures: and, fact, harm was done to our security from the program’s revelation. All of that may or may not be so, but how are we ever to know? The process of verifying any of those assertions would itself violate the program’s necessary secrecy. Indeed, the very fact of such a secret domestic spying program is wholly contrary to the fundamental precepts of government acting only through the will of the governed.
And so we have a conundrum. The program cannot operate unless we are willing to relinquish, not only our personal privacy, but our say in how our government operates. We are asked to acknowledge the permissibility of the creation and operation of a government program entirely beyond the purview of the American people. And we are only asked for that acknowledgement because of the sordid circumstances in which it came to light. We were, in fact, never supposed to know.
We should, therefore, be asking ourselves if the perceived threat justifies such a significant alteration of the role of the American people in governing themselves. Clearly we are being required to give up strict adherence to the Fourth Amendment’s prohibition on unreasonable searches and seizures, which means intrusions without the approval of a court. While a secret court ostensibly serves that purpose, the fact that it operates in secret is an anathema to the rudimentary concept of a court of justice, where judges and officials are chosen by the people or their representatives, and where proceedings are open a subject to review. The further fact that the court rarely, if ever, turns down a request for surveillance further obscures its authority as a purported protector of constitutional rights.
Perhaps more significant is very idea of a government program that received no vetting whatsoever through the democratic process. Essentially, we are simply asked to trust the administrators of the surveillance to take care to protect our privacy. In other words, we need not worry our pretty little heads about those complex national security issues. It is all being taken care of by a dedicated, impartial and fully incorruptible government that knows what is best for us.
The terrorist threat is obviously something that requires a response with our full resolve and utmost diligence. But is it not the loss of our liberty that is the ultimate terrorist goal? Do they not wish to frighten us into capitulation of our fundamental rights? Could it be that in the breath and scope of our response we are handing the terrorists what amounts to a partial victory? Those are questions worthy of debate in our republic. If we determine that it is necessary to give up rights, we should do so knowingly. That is the heavy burden that our forbears bequeathed to us in the Constitution. It is also a great strength that sets us apart from other nations.
Fifty years ago, when we marked the Gettysburg centennial, we were still fighting a very significant part of of the Civil War. That spring, in the name of public safety, Bull Connor, the Commissioner of Public Safety for Birmingham, Alabama, unleashed dogs and had fire hoses turned on peaceful civil rights demonstrators. People gave their supreme efforts, and, in some cases, their lives to establish that such injustice, in the name of security, never be visited upon Americans because of the color of their skin. But the preservation of the rights of a free people requires constant vigilance. It requires our never-ending engagement.
There is much power given to those with the authority to act in the name of safety and security. Like all powers, it is subject to corruption and abuse. We have built a system in which we attempt to minimize corruption of power through the oversight of the people. If we are asked to subject ourselves to invasions of privacy in the name of national security, we should first have the meaningful discourse necessary to give the maximum assurance that the program is conducted in the best interests of the public. Otherwise, we have surrendered rights in ignorance and silence. We should not find out about an abridgement of constitutional rights in the manner in which this program was disclosed. We should not relinquish rights in ignorance and silence. As the dead at Gettysburg should have taught us, remaining a free people is not for the faint of heart. As Lincoln admonished us, it is something about which we must be fully resolved.