Monday, June 10, 2013

Why the Snowden Leak Is Such a Big Deal (What the World Knows Now)

First off, the Constitution is important. Even President Obama said he "welcomed" this discussion, though one wonders how seriously the President meant it. The smears against Snowden have already begun, and the DOJ has already launched a criminal probe targeting Snowden. Ultimately, I think this is a great discussion to have, and it is well-timed to minimize the damage that it might do to either Obama or the Democratic Party (after Obama's re-election, after his expected honeymoon period, and yet 17 months before the mid-term elections). I think Snowden and Greenwald timed this release very carefully and prudently. That said, the 4th Amendment matters to many, many Americans, and it's good to have this discussion.

Second, and more importantly, I don't think we have grasped, yet, the implications of the information Snowden released. So far, most of the discussion I have seen centers on whether the NSA's data-collection activities violate the rights of Americans. But what about the rights of the rest of the people in the world? What's most embarrassing, here, is that Snowden and Greenwald have just announced, to the entire world, that the U.S. has the capability (and assumes it has the right) to capture and record not only meta-data from phone calls but all digital information (from any source) that passes through internet servers in the United States. What's more, 4th Amendment protections do not apply to non-citizens, so the world now knows that we are recording all data that comes into the country (via phone or internet) and we reserve the right to look at any or all of it, for any reason, at any time, without any real oversight. Even if there is some kind of judicial or Congressional oversight, certainly foreign governments have no oversight capability in regards to this data.

This, I think, is enormous. I suspect our allies already knew about the program. We probably told them, but just because allied governments were advised, that does not mean that their citizens knew anything about it. Now they do. I have no idea what will happen as a result, but I think this is a very, very delicate time for the United States and for the world.

Just food for thought.


Sunday, June 9, 2013

Obama's Best Chance to Make History and Be Revered

June 9, 2013

President Barack Obama has already made history in multiple ways, but the recent revelations by The Guardian and the Washington Post (that since 2006 the NSA has been collecting what they call "meta-data" on every telephone call made to or from a caller in the United States) has given Obama a perfect opportunity to prove to the world that the United States stands for open, transparent, republican government and that we treasure, and are willing to defend, the 4th Amendment to our Constitution. As the head of the Executive Branch of the Federal Government of the United States, Obama could simply order the NSA to stand down. With the stroke of a pen, Obama could simply order the NSA to stop collecting this data, and I think he should.

Obama took an oath to uphold the Constitution of the United States, and I suspect he is appalled by the continued erosion of the civil liberties of his fellow Americans. Recent events have given him a chance to make a real difference in the historical trajectory of the nation. Doing so would deeply endear him to millions of Americans of all political stripes and even more people around the globe. Nobody wants to be spied upon by the NSA. Were Obama to vanquish the specter of TIA (total information awareness--the goal of the American cyber-security apparatus), he would go down with Jefferson, Lincoln, and FDR as one of the greatest of all American Presidents, despite his lackluster performance over the past 4 1/2 years.

Most likely, Obama's advisers are telling him that he must defend the status quo, and that national security (presumably the object of the NSA's massive database) will be compromised if he refuses to allow the NSA to continue its secretive data-collection activities. Obama probably worries about accusations of being "soft" on terrorism. He probably worries about retaliation from powerful forces in the semi-autonomous American intelligence community. He worries that his political party, always paranoid about being called "soft" on anything, might be damaged in future elections. These concerns, and more, are certainly on the President's mind. Nevertheless, to quote LBJ, "Every once in a while, a politician needs to do something good for the people," and Obama now faces a rare opportunity to stand up for the Constitution and for the rights of the people. If he can muster the moral courage to do so, he will be remembered and revered by people around the globe.

Presidents who defend the Constitution are well-rewarded for it by history. One such President was Thomas Jefferson. The Federalist Party, Jefferson's adversaries, controlled the Presidency from the time of Washington's inauguration in 1789 until 1801. During that era, the Constitution was new and quite fragile. It had only been ratified in 1787, and it was still being tested. Nobody really knew how weak or strong it would prove to be. The ruling Federalists tested its limits on a number of occasions, passing, for example, laws against sedition in clear violation of the 1st Amendment's guarantees of freedom of speech and freedom of the press. The Federalists used their new laws to shut down Republican newspapers and to silence Republican dissenters. (Note that the modern Democratic Party is the direct descendant of the Republican Party of Jefferson and Madison). Republicans were appalled, of course. They had insisted upon the Bill of Rights in order to prevent the exact abuses that the Federalists enshrined into law in the early days of the republic. At that time, the Supreme Court was too weak, and its role was too uncertain, for it to be an effective deterrent to the power of the Federalist Congress. For many years, there was nothing the Republicans could do to stop the tyrannical Federalists.

Then Jefferson beat John Adams in the historic election of 1800. Jefferson became President in 1801. At that time, he faced a choice of tremendous historical magnitude. His party had been the victim of serious abuse. Many Republicans wanted vengeance--to crush Federalist politicians, newspapers, and sympathizers, but Jefferson understood that if the Constitution were to ever mean anything, then it must be enforced and its protections must apply to all. He refused to persecute the Federalists; he worked to abolish their sedition laws, and he preserved the Constitution. The result? The Bill of Rights still has meaning and continues to secure the rights of American citizens. In addition, the Republican (Democratic) Party controlled the Presidency for the next forty years.

Consider another of Jefferson's principal contributions to American law. Usually the first case read by law school students in their required course on Constitutional Law is the seminal Marbury v. Madison. For those not familiar with the case, a little more history is in order. Marbury was a Federalist--appointed to a Federal Circuit Judge position by John Adams and confirmed by the Federalist Senate. By the time Marbury arrived in Washington, the government had changed hands. The Republicans were in charge. Jefferson was President and Madison was Secretary of State. It was Madison's duty to give Marbury his commission, but Madison refused. Marbury was a Federalist, after all, and the Republicans were eager to install their own judges whenever the opportunity arose. Marbury challenged Madison's refusal to deliver his judicial commission, and the case was heard by the Supreme Court. The Supreme Court ruled that Madison had to give Marbury the commission.

Here, again, Jefferson faced a choice of great moment. Jefferson wasn't fond of Marbury, either, and he could have easily ordered Madison to defy the Supreme Court. After all, the Supreme Court didn't have an army at its disposal, nor did it have the popular support that Jefferson enjoyed. Jefferson could have just said no, and if he had, our republic would be quite different today. Instead, Jefferson commanded Madison to issue Marbury's commission. Once again, Jefferson understood that if the Constitution was to have any meaning, and if the Supreme Court was to function as an equal branch of government, then the Executive Branch had to follow its orders when the Court issued a constitutional ruling. Marbury became a judge, and the Supreme Court of the United States was thereby endowed (because Jefferson allowed it) to rule on the constitutionality of laws and acts of the Federal Government. By standing down and refusing to exercise the power he obviously had in abundance, Jefferson single-handedly preserved the checks and balances that form the backbone of our republic.

Today, Barack Obama faces a similar dilemma. He has the option (like Jefferson) of possibly taking a short-term political hit but, at the same time, defending the Constitution. There can be little doubt that the Patriot Act and the FISA Amendment have seriously damaged the 4th Amendment. Obama undoubtedly feels tremendous pressure to keep Americans safe from terrorist attacks, and he is certainly being told that the NSA's database is essential in our ongoing "war" against terror. He is, perhaps, concerned that his political party will suffer if he scuttles the NSA's data-collecting apparatus. He may feel that security is more important than liberty, despite Benjamin Franklin's timely warning to the contrary.

What history shows, however, is that the American people really, really like it when their leaders stand up for their rights and for the Constitution. The political goodwill that the President would generate by resisting creeping fascism and the machine of state surveillance is beyond calculation. Not only would it be the right thing to do, Obama might just initiate another forty-year period of Democratic control of government. The NSA can't prove that its enormous database has prevented a single act of terrorism. Even if it had, Obama should consider whether the modicum of security provided by the NSA's database justifies sacrificing the 4th Amendment's protections against unreasonable searches and seizures and the right of the people to be secure in their papers. If he knows anything about Thomas Jefferson, he should know that standing up for the Constitution is always a safe bet. If he has the courage to sign an order commanding the NSA to stop collecting information on American citizens who are not suspected of any crime, he will go down in history as one of our greatest Presidents. History suggests that it wouldn't hurt the Democratic Party, either.