How’s this for a presidential campaign slogan in 2016:
I want you to know more about your government,
and I want the government to know less about you.
The federal government, through the National Security Agency and other apparatuses known and probably unknown, can find out pretty much anything it likes about you. But if you want to find out much about the NSA, you’ll wind up in prison or in exile. It just seems upside-down, doesn’t it, that the government should have more privacy than its citizens? Yet, as a matter of law and policy, we have a convoluted and confusing history on the question.
Louis Brandeis, later the distinguished Supreme Court Justice, and his law partner Samuel D. Warren published a famous treatment in the Harvard Law Review in 1890, arguing the necessity of a legal right to privacy. That they wrote it seems an implicit concession that no such legal right existed at the time – even though their argument rests on both common law and the philosophical concept of natural rights.
A good deal of legal water has tumbled over the judicial dam since 1890. Strict constructionists, as they like to call themselves, claim there is no constitutional right to privacy, as though the Fourth Amendment didn’t exist. Supporters of abortion rights claim there is, because without it, Roe v. Wade and the protection of abortion wouldn’t hold up.
A few questions, then. Is there a right to privacy? Should there be? Who requires privacy, the government, its citizens, or both? What are the legitimate reasons for invading privacy? What are the legal and social effects of changing expectations of privacy and technological encroachments on it?
We’re not going to answer all those questions just now, but we can say, quite urgently, that they need public examination and serious debate. Any such debate should start with answering the first question: Is there a right to privacy? The answer must be yes, for the sufficient reason that without privacy, there is no meaningful freedom. The Founders recognized this, which is why they wrote the Fourth Amendment. The fact that the word “privacy” does not appear in the Constitution may signal only that its importance was considered axiomatic.
Of course, the Constitution means only what the Supreme Court says it means, and even then, following it is a matter of choice. No president wants to, and all at least stretch its limits. Some thought concerning presidents, privacy and the abuse of power:
* Let’s say you think Barack Obama wouldn’t really abuse access to all this information on Americans gathered by an NSA whose statutory mission is confined to foreign intelligence. The next president could be a Dick – Nixon or Cheney, say. If you trust Nixon or Cheney, consider that the next one could be Bernie Sanders.
* Presidents may have access to the information, but so do thousands of other people. Some of them are J. Edgar Hoover and similar abusers of power.
* Normal people don’t want to be president. It takes a person with the hubris to think he or she should make decisions on who lives and who dies to seek the office. That kind of person does not consider that any power is too great or too dangerous to wield.
* The presidency is a political office. In political offices, decisions are made for reasons that are, first and last, political. When a politician says it’s to protect you from terrorists, what you should hear is that it is to protect the politician from the consequences of even the smallest terrorist incident; and that it might be useful against all kinds of enemies, chiefly political ones.
You do and will, of course, hear that the NSA’s collection of so-called metadata on American citizens’ communications is necessary to protect those same citizens from terrorists. Even if that were true, it would not justify the illegal and odious practice. The president’s first job is not to insure the physical safety of Americans, but to insure their freedom. He cannot do that by first asking them to sacrifice freedom.
Beyond that, however, the collection of all this information is not protecting Americans from anything at all. It is, in fact, clogging the entire national telecommunications system, compromising security of government communications along with everyone else’s, creating databases too large to search effectively and requiring clearances for too many people to monitor, let alone trust with secrets.
Which brings us to Edward Snowden. There’s been enough time, now, to put the former NSA contractor’s news leaks into some perspective, and to begin to assess their effects. There’s also been a remarkable book, No Place to Hide, by Glenn Greenwald, the courageous constitutional lawyer-turned-journalist to whom Snowden turned for help in releasing his information. You cannot read the book and come away without fear of the government or sadness about the state to which it has descended.
James Clapper, the director of national intelligence, keeps saying, with no evidence to back up his claim, that Snowden has damaged national security. We don’t know much about Clapper, except that he lied to Congress. Snowden, a notorious, serial truth-teller, says the NSA has damaged national security a lot more than he has. Even the president admits that a healthy national debate about surveillance methods and extent wouldn’t be going on had it not been for Snowden. (It is true that Snowden’s revelations have damaged certain international relations. If you were Angela Merkel, and learned that the U.S. had been tapping your personal telephone, would you be offended?)
Maybe Snowden broke the law, and maybe not. Even a soldier in combat is not required to follow an illegal order, but if he doesn’t, he’d better back up is action with proof. Snowden proved a lot of things that were patently illegal and unconstitutional. If President Obama had the courage to back up his campaign promises of government openness, he’d welcome Snowden back home and pin a medal on his chest. Instead, his policies have resulted in more prosecutions under the questionable Espionage Act than those of all previous administrations combined.