2. The boundary separating concerns of personal privacy
and national security must be determined and reshaped over time through
democratic deliberation – there is no absolute right to privacy in the
U.S. Constitution and no guarantee of public safety in the interventions
of the U.S. government against foreign enemies.
My last entry in this rant, before I got off track and
started commenting on the Supreme Court, sought to address the particular terms
of metadata collection by NSA in relation to FISA and Fourth Amendment
protections against searches and seizures.
The objective in this section is somewhat broader and at a higher level
of theoretic abstraction. Specifically,
acknowledging that the collection of telephonic metadata and other pieces of
communications information by NSA involves a certain deprivation of personal
privacy for individual U.S. citizens in the name of protecting the U.S. from
the actions of foreign governments and non-governmental groups engaged in
lethal violence against U.S. citizens, the NSA’s actions raise questions
concerning the determination of a dividing line between individual liberties
(including the liberty of personal privacy in one’s everyday life) and
collective security.
The reasons
that would justify a diminution of individual liberty in favor of collective
security are contextual and open to question.
Ultimately they presume that such a tradeoff is both possible and
effective/efficient in the sense that a tradeoff of individual liberties will
successfully avert acts that would threaten the nation’s survival and/or
endanger the lives of its citizens. As
such, it relies on a calculus of certainties in a world where nothing
is ever certain. However, the
absence of certainty does not, in itself, negate the potential benefits of
surveillance or other measures intended to safeguard the population.
Moreover, in my view, the results
of a tradeoff are less important than the processes through which it was
effected. Specifically, how are
measures truncating individual liberties enacted? Is there a broad-based discussion, open to counter-arguments
acknowledging the imperfection of enhanced security measures and defining
threshold levels of public safety in ascertaining their efficiency? Are there opportunities for public input
into programmatic development? In the
very least, absent any specification of the classified details on how security
programs are to be developed, is there any opportunity for a discussion of general
principles, against which administrative agencies can be commissioned to
develop programs that conform to the expressed willingness of the public to
make sacrifices to individual liberties if in principle such concessions
will potentially make the collectivity safer against known or suspected
enemies? In general, is the enactment
of a tradeoff truly democratic in nature or is it imposed on a
sovereign polity by a government, commissioned to act in its behalf, without
either its knowledge or its consent?
As I have
defined the question of tradeoff, at least two distinct frames of reference
exist through which we can evaluate the efficacy of a tradeoff. From a liberal/libertarian, rights-based
perspective, any truncation of individual privacy constitutes a
deprivation of the basic, inherent (inalienable!) rights of individuals
by government, necessitating that the government definitively prove both
the indispensable character and the effectiveness of such a tradeoff of liberty
for security as a condition of public acceptance. Within such a frame, individual rights predate the necessary evil
of government and, thus, the progressive enactment of measures truncating
liberty must always be rigorously justified in terms that axiomatically
prioritize liberty against security.
Such frames of reference identify strongly with Franklin’s assertion
that “(t)hose who would give up essential Liberty, to purchase a little temporary
Safety, deserve neither Liberty nor Safety,” interpreting in this reference the
notion that individual rights must always be granted priority over
measures limiting personal freedom in the interest of public safety.
Interestingly,
a blogger from the Brookings Institute, Benjamin Wittes, has uncovered an
alternative interpretation of Franklin’s quotation, derived from its unique
historical context, that more adequately connects the quotation to my
alternative frame of reference (see Wittes, “What Ben Franklin Really Said,” on
Lawfare (July 15, 2011), at: http://www.lawfareblog.com/2011/07/what-ben-franklin-really-said/). It turns out that Franklin made the assertion
in 1755 as a Pennsylvania colonial legislator, supporting the taxation of
properties held by the Penn family to pay for the defense of outlying
settlements against attacks by Native Americans aligned with the French. The colonial governor, selected to serve by
the Penns, vetoed successive efforts by the elected legislature to impose taxes
on these properties. In order to settle
the matter, the Penns volunteered to provide limited funding for
defenses in exchange for a concession by the legislature that it lacked the
authority to impose taxes on their property holdings. In this circumstance, Franklin is arguing to his colleagues in
the legislature that they should reject the offer rather than cede the
essential Liberty of the legislature to act on the behalf of the sovereign
polity by which it was elected to impose taxes in the public interest. Rather than prioritizing individual liberty,
Franklin is defending the collective exercise of government on the behalf of a
democratic sovereign to act in its interest.
The point
here is that a collective, democratic frame of reference begins from the
proposition that the authority to define and subsequently expand or impose
limitations on individual liberties inheres from a sovereign collectivity that
governs in the collective interest of its members. In this sense, tradeoffs between liberty and security are not exceptional
moments, but they demand compliance with a process through which the collective
will of the sovereign can be determined.
If we concede the point that individual liberties and sacrifices of
liberty in the name of security continuously implicate a deliberative process,
then programs, like those undertaken by the NSA to monitor telephonic metadata
and e-mail correspondence without a prior establishment of probable cause,
should always, at least, be discussed publicly in principle if not in
detail. Maybe a public discussion
of the technologies involved in surveillance would undermine the effectiveness
with which civilian intelligence agencies act to assemble data on enemy
agents. If so, then would it have hurt
very much to have an extended public discussion by the Senate and House
Committees on Intelligence concerning the principle of collecting information
on telephone calls for all Americans without a warrant, especially if such a
discussion does not give away to any tangible extent the methodologies by which
the NSA intends to collect and analyze data?
My point here is that democracy demands, at least, a discussion of what
the government intends to do in order to safeguard the public and maintain its
sovereignty. Otherwise, the absence of
such a discussion calls into question the ultimately sovereign character of a
democratic polity underlying the legitimacy of the government’s actions per se.
With this
in mind, notwithstanding the embarrassment of the NSA, the Obama
administration, and relevant Congressional committees in the know on the
activities of civilian intelligence agencies, maybe there was something
worthwhile accomplished in Edward Snowden’s disclosures on the information
collection activities of the NSA.
Specifically, they are forcing Congress and the Obama
administration to account for their clandestine actions and engage in a principled
debate before the public on why these programs have been enacted and
whether they are justified on the basis of their potential to enhance the
security of the public and defend our national sovereignty. Likewise, protests in multiple American
cities today, under the rubric of “Restore the Fourth (Amendment)” reflect an
underlying effort on the part of at least some within the American public to
demand the prioritization of personal privacy as a matter of public
policy.
In my view, I cannot see how such
reactions are not healthy for American democracy. On the other hand, I would not want this broader social
discussion on security and privacy to be truncated either by, say, a federal
judicial finding invalidating the constitutionality of the NSA’s surveillance
programs or by a broader administrative and Congressional consensus on the
classified character of these programs and the gagging of further media
inquiries into their operations. The
American public is entitled to question the nature of national security
programs in relation to its dual demands for personal privacy and to be free
from the fear of more 9/11s and Boston Marathon bombings. It is ultimately questionable whether these
demands are mutually reconcilable, but as long as we, as a society, engage in
the contentious process of consensus building and maintain permanent openness
to reconsider the issues evident here, then the vitality of our democracy is
sustained.
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