Glenn Greenwald and his colleagues at The Guardian continue to demonstrate the power of the old school “mainstream media” to set an agenda. Now we are hearing from Greenwald’s NSA source who explains, “I’m willing to sacrifice all… because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”
And so, perhaps inevitably, a complicated issue of ethics and politics of the highest order will be personalized and reduced to melodrama. Which, at least, gives me permission to tell my story.
The only claim I have on anything truly scholarly is a sort of silver-age knowledge of the constitution of late-republican Rome. This involves the period from about 133 BC to the rise of Augustus (27 BC) when constitutional structures imploded and produced the Empire. As a young man I read entirely too much Cicero and have carried the burden into old age. It is a story of freedom thoughtlessly and selfishly sacrificed.
As a result the claims of a “unitary executive” by various players in the George W. Bush administration caused me considerable concern. A life-long Republican (capital R) I had supported John McCain in 2000 and expected to do so again in 2008. But in conversation with his national security team (in which homeland security was entirely subsumed) I became increasingly alarmed.
It was not so much what they intended to do. It was how and why they were going to do it. The world had, it seemed to them, become too dangerous for due process. It depended on a few good men (mostly good, mostly men) to do what was needed to defend the nation against attack. Further, the nation they sought to defend was an abstraction of power and interests that did not, listening carefully, seem to have much at all to do with the Constitution.
So in early 2008 I decided to work for the once-upon-a-time lecturer on constitutional law at the University of Chicago, who — it seemed to me at the time — combined a kind of tough Niebuhrian realism with a disciplined self-restraint that reflected both the Founders and a good slice of Cicero.
Like our NSA contractor/whistleblower/hero/traitor — Mr. Snowden — I suffered the consequences of my choice. My wife has made the point that if we had given the campaign what we lost because we joined the campaign I might have at least been made ambassador to some obscure corner of the world. More to the point, a lifetime of personal relationships and professional networks was largely sacrificed. Even my Dad was disappointed.
Since his election President Obama has been very tough on terrorism or, as he prefers, “violent extremism”. Several times he has exceeded what I perceive to be his appropriate constitutional role. Especially in these cases the President has tended to argue that the controversial decision is an exception-that-proves-the-rule. It may be little more than a fig leaf, but I have appreciated the nod to constitutional decorum even as I recall Augustus was a master of the technique.
Potentially more substantive, the President’s May 23 National Defense University speech called for a more extensive legal framework that would explicitly limit his own authority and that of future executives. But other than the classified PPD and other gracious acts of executive self-restraint will anything really change? Right now the speech is as likely to become a footnote — another fig leaf — in future explanations of the eventual collapse of our Constitution under conditions of perpetual war.
In this context I have found the revelations of NSA spying on you and me to be cause for considerable celebration.
Based on what can be known today it would seem that:
- The spying has been undertaken in accordance with the laws and Congressional oversight — such as it is — has been consistently facilitated.
- The spying has been undertaken only after judicial review and authorization of narrowly written warrants.
- The spying has been structured and organized specifically to limit when and how the information is used consistent with the judicial warrants and is extended only with further judicial review.
- The spying has been exposed by the unofficial fourth branch for public consideration.
- The spying has caused political enemies who sometimes seem to personally despise each other to share the same or proximate podiums to not only explain the due process exercised in this case but the mysteries of meta-data as well.
What a world!
I regret living in an age when so much of what I do is tracked — and even more is trackable — by a whole host of players. This is an issue Cicero did not need to consider. It is a temptation to which neither Julius nor Augustus Caesar could succumb. But this is our reality. It is not a question of being tracked. It is an issue of how and why… and what will be done with the results.
And in dealing with the wicked problem of terrorism and the temptation of digital tracking, what we are seeing unfold is the way our Constitution — formal and informal — is supposed to work. We have elected agents to make judgments on our behalf. Thanks to Madison and others we have structured our Constitution so that these agents compete with each other. Through this competition of branches and parties and people a self-restraining, privacy- protecting, freedom-preserving process is cobbled together. Thanks to the First Amendment to our Constitution we have empowered informal agents to hold our elected agents accountable.
As a result, we are given the opportunity to consider difficult issues and to decide how our agents are behaving regarding these issues and whether or not we are prepared to allow them to continue to be our agents. For me this is the nation. This is what is worth defending.