AUGUST 16 UPDATE: Today the Washington Post reports on several hundred incidents of the NSA failing to conform with current regulations and legal boundaries for domestic surveillance. This is where strong action by the executive — as outlined below — is most needed and can be most effective.
Friday the President used the White House press room to announce and take a few questions on proposals to better balance civil liberties with digital surveillance.
Monday the Wall Street Journal editorialized that these proposals constitute a “retreat on his core powers as Commander in Chief.” If I understand the editorial correctly, the WSJ perceives the President has sovereign authority under Article II, Section 2 to spy on us as much as he perceives the nation’s security might require. Judicial oversight as currently provided by the Foreign Intelligence Surveillance Act is, in their view, unconstitutional. Any due process is, it would seem, collaboration with our enemies.
On the left hand: Writing in The Atlantic, Conor Friedersdorf conducts an eviscerating exegesis of the rather brief — even bland — Presidential statement and concludes, “Obama is still lying, obfuscating, and misleading the American people. In doing so, he is preventing representative democracy from functioning as well as it might.” He perceives a President corrupted by power and given over to condescension, setting the stage for our liberties to be lost forever.
There are of course judgments farther to the right and left of these still recognizably reasoned opinions. But rather quickly “right” and “left” are lost to something closer to Freudian obsessions or the deepest mysteries of Jung’s collective unconscious. Obama becomes a token or talisman or target of spiritual warfare and whatever he says is treated like a just-discovered manuscript in a Dan Brown novel.
My take is more prosaic. The President — like all of us — is a creature of his prior experiences. Among these are 1) a black man with insider knowledge of white America, 2) community organizer, and 3) lawyer.
If the first prior is having any influence here, it is expressed in the President’s perpetual pragmatism. He intends to “get ahead” (what this means specifically depends on context). To do so he needs to be realistic about the impediments or threats he will encounter. He is predisposed to action that mitigates or obviates knowable problems. The surveillance programs (and the drone program and much more) inherited from his predecessor are adapted, expanded, and subjected to more detailed processes.
As a community organizer he is sensitive to matching his interventions to the values, aspirations, capabilities, and readiness of those he is trying to organize. He can facilitate, provoke, propose… but it is up to the community to choose and sustain (or not). Fundamental issues can be teed up, but it is the community’s role — not his — to decide. Notice how often, including in this instance, he unveils a process that tends to turn the initiative over to others. He will advocate for certain principles or objectives, but if and how these are adopted is really up to others.
As a lawyer President Obama is inclined to procedural solutions: a task force, a privacy advocate, checklists, reviews, appeals… Justice Frankfurter once wrote, “The safeguards of due process of law and the equal protection of the laws summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our people. The history of American freedom is, in no small measure, the history of procedure.” Whether or not the President knows the quote, he regularly demonstrates his concurrent view.
As a white man I have not needed to be quite so pro-active regarding threats and impediments. My approach to management and leadership is similar to that of a community organizer. The successes tend, I am proud to say, to be substantive and long-lasting. But failure is much, much more common. I am personally impatient with procedure, but as a matter of human history I agree with Frankfurter (and the President) on its important role.
There are tangible threats to the United States which surveillance can help prevent and mitigate. There is a profound threat to our liberty that emerges from government surveillance, especially in this digitally networked era. Procedures are, probably, the most important part of any large bureaucracy’s effort to mitigate abuse of this unprecedented surveillance capability.
In a different time or place I might, despite all my failures, still advocate for community-based engagement with these treacherous issues. Unfortunately, in this time and place if our civil liberties are to be reasonably preserved in face of these extraordinary technical means, strong and specific Presidential action will be needed. Legislation would be better, but I don’t think it will happen. Community consensus would be even better, but on this issue nothing even close to consensus is possible any time soon.
It is problematic. It is paradoxical. But a community’s strength sometimes depends on individuals to sacrifice legitimate power in order advance what is best for the community. On Monday the Wall Street Journal editorial board complained, “Mr. Obama invited Congress to tie him and future presidents down with new oversight and limits on a surveillance program…” It is right to extend the invitation. It will be necessary to do even more.