I’ve been assembling some thoughts on the NSA leaker Edward Snowden who revealed the existence of top-secret government surveillance programs, including the PRISM project to tap into the customer data of the nation’s largest internet companies, and a court order requiring Verizon to turn over metadata on all calls in its system on an ongoing basis (I’m still astonished that any court could ever have considered that request to comport with the Fourth Amendment).
Already there are fierce arguments over whether Snowden should be prosecuted (HT: Neurobonkers). I’m aware that he views his deed as an act of civil disobedience against government overreach, and in most cases, I support peaceful civil disobedience only as long as the person doing it is willing to take the consequences. But this case is different. I think Snowden’s acts are properly viewed as whistleblowing – that is, the exposure of official malfeasance – and therefore deserving of a pardon. And if the government won’t pardon him and insists on prosecution, I’d advocate that anyone chosen to serve on his jury should refuse to convict him.
I argue this for one reason: Democracy requires the consent of the people. The reason we have elections is so that, if we don’t like what our representatives are doing, we can kick them out of office. If the public is kept in the dark about our government’s policies, then it’s impossible for us to exercise that power in a meaningful and informed way. The branches of the U.S. government were created to check and balance each other, but ultimately we, the voters, are the final check. If we’re denied the information we need to use it wisely, that protection is subverted.
Whether it’s dragnet wiretapping, a secret drone war, hidden black-site prisons, the explosive growth of classified documents, secret legal opinions, the unprecedentedly aggressive prosecution of leakers, or even the longstanding censorship of photos of returning military coffins, the mushrooming secrecy state denies us that power that’s rightfully and ultimately vested in us, and is corrosive to the legitimacy of democratic government. (And I haven’t even mentioned the catch-22 of the government arguing that as long as they don’t admit the existence of illegal spying programs, no one has standing to sue over them and litigate their constitutionality.)
“If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure we’re abiding by the Constitution, then we’re going to have some problems here,” Obama said.
No, Mr. President: “Trust us” is not acceptable as the basis of a democratic government. (The administration also absurdly claimed it welcomed the debate, when in reality they went to every length possible to prevent the debate from ever happening.) Even though President Obama didn’t begin these policies, he’s acquiesced to them and allowed them to continue, which makes him equally culpable.
Of course, specific actions taken by the government can be kept secret. A prosecutor shouldn’t have to warn a mob boss that he’s under suspicion and is being wiretapped, nor should a general have to disclose the movements of his troops. But the policies themselves can’t be secret. We may not know who’s being wiretapped, but we have the right to know that such a power exists. We may not know how our soldiers are maneuvering, but we have the right to know that there’s a war being fought. And to prevent abuses of even legitimate powers – like the FBI wiretapping its political enemies in the hope of digging up blackmail – official secrecy should be strictly limited in scope, temporary in duration, and subject to challenge and independent oversight. The spying we now know is being conducted by our government fails that test on every count.
The only argument proffered in response to this is that the government also has a responsibility to keep us safe, and these programs accomplish that. But even if that’s true, the Constitution sets limits on the means by which that goal can be achieved. If the U.S. were turned into a police state with 1984-style spy cameras in every home, that would also keep us safe, but only at a cost which outrages the Bill of Rights and which most people would find repugnant. Again, we the people are entitled to know the means by which the government proposes to protect us, so that we can weigh the costs and benefits and make an informed decision. The patronizing, sinister rhetoric “just trust us” has no place in a nation formed in rebellion against the tyranny of an unaccountable leader.
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