I’ve been on vacation, so these thoughts about President Obama’s August 9 speech on digital surveillance are somewhat late. I do think the proposals he advocated are the best among the available options for reform, especially the idea of appointing an adversary to the state to argue cases before the Foreign Intelligence Surveillance Court. Yes, had he suggested ending one or two of the comprehensive surveillance programs, then corks would have been popping, but simply due to the inertia of the security apparatus, those programs would most likely just restart in the next few years anyway. Once it stumbled across those weeds sprouting again in the garden, Congress would spare them the trowel and retroactively authorize them, just as it has done in the past. The most important thing is to establish some kind of procedure that will protect democracy from surveillance in the long term, one that will guard effectively against the worst abuses and will prevent unelected officials from making major decisions about the structure of our society in secret without any meaningful check on their authority. A court that meets in secret but has a diverse bench and hears both sides of every case seems to me like a reasonable and workable compromise.
All the same, that the Obama administration has not recognized the importance of this task casts doubt on the depth of their commitment to constitutional government and at the very least represents an embarrassing failure of imagination. Obama himself shares those faults, as his remarks made clear, nor does it seem that anyone in the White House has understood the seriousness of the problem.
The closest Obama came to admitting his government’s mistakes might have been when he said, “It’s not enough for me, as president, to have confidence in these programs. The American people need to have confidence in them as well.” That’s true. Moreover, the fact that the executive undertook several massive programs to collect and, in some cases, store records of its citizens’ personal communications more or less on its own initiative without their informed consent or that of very many members of Congress shows that the rule of law has lost some of its force. Because of the nature of bureaucracies, which is to grow like weeds as long as they remain hidden under the bushes, that authority is likely to continue eroding. Obama should acknowledge failing the spirit if not the letter of his oath to uphold the Constitution.
Likewise, Obama tried to assure reporters that the programs are not being abused:
If you look at the reports, even the disclosures that Mr. Snowden’s put forward, all the stories that have been written, what you’re not reading about is the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now part of the reason they’re not abused is because they’re — these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.
That is untrue, first of all. The National Security Agency frequently goes beyond its authority, according to an internal review, though it would be difficult to prove that it is doing so intentionally. Yet beyond specific abuses, any one of which is probably harmless, this statement reveals how poorly Obama understands the issue. The court cannot possibly be a meaningful check, since there is no possibility of appeal from its decisions, all of its members are appointed by the same man, and only one party is permitted to appear before it. The law only has legitimacy to the extent that members of Congress are permitted to understand how it is being implemented. Let’s assume that the agency had never once abused either the spirit or the letter of its authority. Even so, the conditions in which these programs are being conducted amount to an abrogation of normal constitutional processes. That is the abuse, and in itself it is a very serious one.
My point here is that in this country, the constitution and the rule of law are not simply means to an end. We have always insisted on protecting them for their own sakes. Even if the government does succeed in guarding citizens’ liberties, if it does so only as a consequence of the benevolence of the magistrates and not because of legal constraints, there is real cause for concern. Constitutional government cannot depend on the people’s confidence in the wisdom of any one particular leader, even if that confidence is well founded. Likewise, particular agents of the government cannot be responsible for deciding the limits of their own authority, without the checks and balances imposed by the other branches, even if those agents do so judiciously for a while. The ultimate result would be autocracy. The debate over surveillance has given all of us a chance to think carefully about what the rule of law really means and to what extent we can tolerate deviations from it, but it is an opportunity the current administration has ignored.