After reading some of the arguments on the civil libertarian side of this debate, I came away with a sense of a loss of balance on the issue. I agree with their idea that fear has been used since the Bush administration to justify many of its policies including rationalizations for wars, expansion of surveillance and targeting of enemy combatants, detention without trial and torture. I did not like the Patriot Act and the expansion of FISA (Foreign Intelligence Surveillance Act of 1978) powers with major legislation in 2001, 2005, 2006, and 2011 (although there was legislation almost every year since 2001). However, I understood the rationale for these actions. I do believe that these laws which can potentially restrict privacy could be dangerous. However, potential is not actual. I, and I think most Americans, are more willing to risk privacy if it prevents terrorist acts.
I also know that we cannot all be arbiters of the balance between privacy and security which is why we elect politicians to make those judgment calls for us. I did not elect a 29 year old kid to make those judgments and I despise him invalidating my political decisions. When he made the statement that he “wanted the public to decide” he conveniently left out the fact that the public already decided. We decided with our vote. Snowden disagreed with our decision and illegally made his own decision which violated our decision. The way we decide in a representative democracy is with our vote for leaders that decide for us. Snowden unilaterally took my decision away by revealing classified data. His decision invalidated mine and broke the law. He may fancy himself as a liberator but the concept of representative democracy embodied in the U.S. Constitution is incompatible with anarchy. Political anarchy only recognizes the law of individuality, the power of the individual to be their own lawgiver. In a representative democracy we elect representatives to make laws. Anyone who defends Snowden’s actions should also reconcile the inconsistencies in their political loyalties between representative democracy and anarchy.
I reserve the word whistleblower for those that reveal illegal or dishonest behavior in an organization. If a whistleblower performs illegal activities they are not a whistle blower they are a criminal. My wife and I in the past have had access to secret and top secret information and we would never think about revealing that information to anyone, even to each other. Personally, I think much of the classified information I have seen does not justify any secret classification but that is NOT my decision to make. Anyone that has access to secret information has to contractually promise and sign forms NOT to disclose that information. This is a matter of personal integrity. I have no respect for those that violate their oath and head for a foreign country to avoid prosecution. I call these folks traitors.
I have to admit that I do not like being manipulated by fear. I felt this strongly in the Bush administration. I do not feel this in the Obama administration. I understand that I am a partisan, at least with regard to the nouveaux Republicans, which may totally account for this difference. If there is any legitimacy to this feeling it would have to rest on the claim that more checks and balances against unnecessary privacy invasions have been implemented in the Obama administration. There is no way to prove this except to go into the actual major legislation pertaining to privacy and security which has been adopted by our elected and politicians and has been made public. I suppose there could be an evil genius behind the scenes fooling us all but I did not believe that in the Bush administration and I do not buy it now…you can’t prove a negative but you can react emotively to it.
I think that Dr. Kisner lays out a very good argument for a real and pertinent issue with a “state of exception” styled government in this paper. I am more concerned with a continuing state of exception in government than an evil genius motif about the Federal Government. I think the evil genius idea of the Federal Government and the unbridled fear of terrorist attacks which always justify a state of exception to existing laws (and in this case privacy laws), free from checks and balances, is much more of a danger to our democracy.
If we do not enforce our laws but change or judgments willy-nilly we do not have any laws. It is not up to any one person to decide they will or will not obey a law and that the law should not apply to them. If laws mean nothing we have anarchy. It may be, as the anarchists claim, that the tribal organization of culture would result in more just and humane behavior but I think that is an unjustified ideal based on history (Afghanistan comes to mind but there are many other examples). In any case, this is not what the U.S. constitution is all about. Libertarians that go this far should not delude themselves that they are patriots.
Republicans in the House and Senate were just accusing the Obama administration on hearing about what is going on with Federal Government through the press but now that the Patriot Act and its expansions are making the news they are telling us that they are just hearing about all this through the news. I guess what is good for the goose is not good for the gander. The Republicans are telling us that they were not briefed as President Obama has claimed. They are just finding out about all this, right? There is no excuse for any politician claiming ignorance on these matters. All of these laws have been enacted over the last 11 years and are public record. Additionally, they have access to secret information we do not have access to. If they claim ignorance in light of this, they are really claiming incompetence and that is the problem of the voters that put them in office.
Additionally, if folks have an expectation of privacy on the internet they are naïve about how the internet works. All information on the internet is thrown into packet buckets accessible to anyone. There may be encoding that encrypts this data but security code can and has been broken. Cyber security is a major problem with the internet apart from any issues with the Federal Government. Also, private companies already have access to user accounts and can and do use it for whatever purposes they want including, at times, intentionally or non-intentionally, clandestine or unethical purposes. It seems to me that the potential for abuse by private companies is not different than for the Federal Government. We should hold both public and private organizations responsible to the laws and check and balances made by the politicians we elect.
It seems that a balance needs to be struck between privacy concerns and preventing terror attacks. If we do not get this right, the worst case scenario is mass murders and not privacy concerns. The abuses we have seen of government authority in the past (J Edgar Hoover and Nixon come to mind) has been when the power was concentrated narrowly in one or a few people and no real checks and balances were in place to prevent abuse.
The original Patriot Act of 2001 allowed “warrantless” wiretaps including “roving wiretaps”, of private and business records including internet and phone searches for national security purposes (called National Security Letters, NSL) without court approvals (FISA).1 Delayed notice warrants, also called sneak and peak warrants, allowed searches and wiretaps that were essentially warrantless (this was struck down by the court in 2007). They were temporary and stipulated that no evidence could be seized. These warrants were criticized at the time as a violation of the 4th Amendment of the U.S. Constitution. Trap and trace which allowed phone calls to be tracked was also authorized at this time. The USA PATRIOT Improvement and Reauthorization Act of 2005 and The Patriot Act Renewal of 2006 made permanent the temporary authorization of the original Patriot Act.2 The FISA Sunsets Extension Act of 2011 and PATRIOT Sunsets Extension Act of 2011 vastly increased the checks and balances in these original laws. It included and attempt to outlaw NSLs which had been struck down by the courts. It also included more congressional oversight for trap and trace.
One other thing to take note of…if you are really concerned with civil liberties you will find below that the Democrats have a better voting record, in terms of no votes and percentages (see endnotes), on these issues contrary to current public opinion of many Republicans and Libertarians.
Here is the public voting record on major legislation:
Patriot Act 2001 Final Votes of House and Senate:3
Senate Votes
See endnote 3 for a description of this legislation.
USA PATRIOT Improvement and Reauthorization Act of 20054
|
Republican |
268 |
14 |
3 |
|
Democratic |
78 |
165 |
4 |
|
Independent |
0 |
2 |
0 |
Senate Votes
See endnote 4 for a description of this legislation.
Patriot Act Renewal on March 2, 2006 Final Votes of House and Senate:5
|
Republican |
268 |
13 |
3 |
|
Democratic |
107 |
127 |
12 |
|
Independent |
0 |
2 |
0 |
Senate Votes
See endnote 5 for a description of this legislation.
FISA Sunsets Extension Act of 2011
Final Votes of House and Senate:6
|
Republican |
255 |
29 |
3 |
|
Democratic |
105 |
126 |
13 |
|
Independent |
1 |
1 |
0 |
Senate Votes
See endnote 6 for a description of this legislation.
PATRIOT Sunsets Extension Act of 2011 (On the Senate Amendment):7
See endnote 7 for a description of this legislation.
_________________
1 See this, National Security Letters
2 See this, USA PATRIOT Improvement and Reauthorization
Act of 2005: A Legal Analysis, Summary at the beginning of the document.
3 See this, click on Read Bill Text
House Votes:
Senate Votes
4 See this, click on Read Bill Text
House Votes
Senate Votes
5 See this, click on Read Bill Text
House Votes
Senate Votes
6 See this, click on Read Bill Text
House Votes
Senate Votes
7 See this, click on Read Bill Text
House Votes
Senate Votes
Snowden has been ‘debriefed’ by China and now by Russia. Reuters is reporting he is looking for asylum in Cuba and Venezuela. All of these countries are shining examples of free and open societies, right? I am sure he is not making any money off all these trips to the lands of the free, right? He tells us he is not profiting from his new found friends and he has a stellar record of telling the truth especially in regard to classified information, right? I am sure he plans to live a life of poverty in Cuba or wherever he finally lands, right? In any case, I am sure the Guardian is happy with their economic prospects since Snowden. I am sure that the next ‘lone wolf’ that attacks American citizens and now knows not to use any public communications will have nothing to do with Snowden, right? My only question is how far civil libertarians will go in their hero worship of Snowden? The answer to that question will inform us if civil libertarians are just chronic cynics of any organized form of government (federal, state, city, etc. – a.k.a., anarchists with the exception that private organized business seems to escape the anarchist indictment) or only the latest in a long line of nuevo revolutionaries. In any case, at some point the only way to maintain their idea that they are patriots will be to create an ideal form of government that does not look anything like our current U.S. government but which they adamantly maintain is the ‘true’ and ‘original’ form of our government. I only, for now, take note of the original, classic Greek notion of anarchy as no origin and the later Latin form as no rule. If anarchy does not question the whole notion of origin as opposed to being merely reactionary (even in the form of ‘revolutionary’) it will only repeat the all too human history of overthrowing the old rule to reinstate the new, old rule.
Here are some interesting comments from critical thinker…
NAW
June 19, 2013 at 11:39 pm · Reply
“Anyone who defends Snowden’s actions should also reconcile the inconsistencies in their political loyalties between representative democracy and anarchy.”
There is no inconsistency.
Deciding that representative democracy sometimes gets it wrong and to act on that belief when its unlikely that normal political processes will right that wrong is not anarchy.
I guess Rosa Parks was an anarchist.
Mark
June 20, 2013 at 8:58 am · Reply
Apples and Oranges…Rosa Parks did not break the law she stood up for the law. Snowden broke the law that we the electorate made law by the politicians we voted in office. You do not change the law by breaking the law in a representative democracy you vote and support the candidates and party that will lobby for the laws you want. It is important to think through the details of an argument and not just simple equivocate everything to suit your ideology…logic, proportion and balance matter.
Jeffrey Ellis
June 20, 2013 at 10:19 am · Reply
It could be argued that Snowden also stood up for the law, in that the document he leaked was a general warrant that failed to satisfy the fourth amendment’s requirement of probable cause and particularity. And I’m pretty sure that Rosa Parks did break the law (for which she was arrested), although it was a very unjust law. So I’m not sure it’s such an apples-to-oranges comparison.
NAW
June 20, 2013 at 10:22 am · Reply
Rosa Parks was arrested because she broke the law.
You don’t directly change the law in a representative democracy by breaking the law, but an act of breaking the law can inspire a popular shift in opinion on an issue which results in elected officials changing the law.
Mark
June 20, 2013 at 11:58 am · Reply
Snowden was not a constitutional attorney that challenged the law in a court of law. He BROKE the law. We have a system that has been around at least since least 1978 when the FISA court was established. Before that, we had CIA assignations that were allowed by law or at least not prohibited by law. Probable cause has not always been required by the courts in certain situations. Current law, voted in by your representatives, allows certain databases to be collected by the NSA without probable cause and the courts have not struck down many of these laws that came about after 911. If the Fourth Amendment is an issue we have a judicial system that provides a check and balance to correct it…this is how the U.S. Constitution has structured our government. If you are suggesting that another valid way to change the law is to break the law you are inserting a non-Constitutional remedy into our system of government. You are advocating another kind of government which I have called anarchy but it could also be called a ‘state of exception’. In other words, when the law and the government do not work we are entitled to individually determine this and declare that our breaking the law is an just exception to law and therefore valid. When societies embark on this path no rational, legal line can be established that would curtail whom and when the law can be broken. This ‘state of exception’ is revolutionary and results, if unchecked, in societal chaos. If the equilibrium of law cannot be established, society can and historically has resulted in perpetual revolution or endless lawlessness – anarchy. The real issue here is does the individual always trump the law? If so, law is not a viable concept. It must always bow to an individual’s state of exception. The whole idea embodied in the U.S. Constitution is that there are checks and balances in the system that allows legal change without revolution and perpetual lawlessness. If you do not buy into the check and balance idea you are not a patriot. When a person violates laws and national security, they endanger lives and betray our Constitution and our country. There is no rational justification for this only an appeal to revolutionary anarchy.
After the Civil War, the Jim Crow laws of the South were ruled unconstitutional by the Federal Government and the Federal courts struck them down one by one. The military was even sent to the South to protect blacks. These laws were mostly struck down by the time of Rosa Parks. Segregation was the last to go and caused the Dixiecrats to change political affiliation to the welcoming Republicans where they remain to this day. The city law that Rosa Parks broke had already been previously ruled unconstitutional by court precedence and was addressed specifically in Browder v. Gayle by the Federal court. The Constitution does not prohibit cities or states from making unconstitutional laws. It only ensures a constitutional way to determine the laws viability. Breaking a Federal law (illegally releasing classified information) which has had several centuries of precedence and will not or should not be overturned by the courts is not the same as breaking the Jim Crow laws of the South which had already mostly been struck down. The South was making unconstitutional laws and the process worked by striking them down. The process cannot and will not declare that it is ok to release classified data for what someone may think are very good reasons. The segregation laws made by those city officials were corrected by the Federal courts based on Federal laws and the courts. In the case of Snowden, he violated Federal laws and court precedence which have already been ruled constitutional for classified data. Republican and Democratic lawmakers we elected have established laws since 911 in which some have been ruled by the process unconstitutional and others have been upheld. If Rosa Parks had not been on the correct side of Federal law (as many whites were) she would have been punished as Snowden will justly be punished. When the law is violated the lawbreaker will be punished and if the law is deemed unconstitutional the law will be changed. In light of recent legislative, judicial and executive history and precedence the preponderance of evidence is that he will be treated like the traitor he is. Rosa Parks was not a traitor…she stood for legislative, judicial and executive history and precedence and against lawless city bigots.
I suppose it is possible that public opinion could change by Snowden’s action but that would be huge gamble in light of 911, terrorism, legislative, judicial and executive history and precedence. You would not want to play those odds in Vegas. It is more likely that his life will be a living hell from now on. If everyone with classified clearances were given the green light to release classified data willy-nilly based on their personal opinions it would inevitably result in more terrorist attacks and I can’t see public opinion supporting that or Federal laws and precedence. I beg to differ, it is apples and oranges if you think through all the factors and ramifications and are not content to recite simple platitudes.
NAW
June 20, 2013 at 12:54 pm · Reply
Browder v Gayle came after Rosa Parks was arrested. Maybe there was other court precedence addressing the issue but I don’t see how that really matters. You are basing your defense on historical contingencies. What if there hadn’t been any precedence for the law Rosa Parks broke being illegal? Would you still sit here and tell us that she engaged in anarchy and should’ve been justly punished?
Are you saying that what Rosa Parks did was at the time legal, or that because the law she broke was subsequently found unconstitutional that what she did was legal?
If the later, then by analogy the Supreme Court could decide that the programs leaked by Snowden are also unconstitutional, in which case Snowden has leaked illegal behavior – which makes him a whistleblower.
Are you also saying that its always illegal to leak classified information no matter the nature of that information? I’m not a legal expert, but if that’s true I frankly don’t care. It’s always in the interest of the powers that be to classify illegal or immoral behavior. I’m more afraid of the society that we would have when a government can endlessly hide behind secrecy than the one we would have when brave individuals leak wrongdoing.
NAW
June 20, 2013 at 1:17 pm · Reply
The way that I see it:
The “system” you are supporting is less likely to lead to social upheaval but has fewer options for combating the tyranny of the majority or tyranny of the minority which takes advantage of the ignorance of the majority. The “system” I am supporting has more options to combat those things, but is more vulnerable to the anarchist pressures you have described.
Does that make sense? The things each of us see as a strength of our system is also a weakness. It’s like the cartoons where the character uses their finger to plug a leak only to make another one pop up someone else.
Mark
June 20, 2013 at 4:08 pm · Reply
“Browder v Gayle came after Rosa Parks was arrested. Maybe there was other court precedence addressing the issue but I don’t see how that really matters. You are basing your defense on historical contingencies.”
Yes, I am aware Browder v Gayle was after…I merely brought that out to show that the system worked – it found that Montgomery, Alabama’s law was unconstitutional. There was much court precedence starting with the Civil War and the 14th Amendment and followed a long tradition after that of striking down Jim Crow laws. Montgomery, as any city, is free to make an unconstitutional law but the last word is the higher courts and current law. The last word had already been given on Jim Crow laws through the 14th Amendment and many decisions that had struck down the Jim Crow laws. A “historical contingency” may be applied to all human history so I do not think it really adds anything to your argument. Some “contingencies” are more certain than others and the Jim Crow laws and segregation were doomed long before Rosa Parks by the system.
“What if there hadn’t been any precedence for the law Rosa Parks broke being illegal? Would you still sit here and tell us that she engaged in anarchy and should’ve been justly punished?”
This is a hypothetical. A hypothetical does not a case make. Yes, I suppose it could happen and gravity could quit being a force but the thing about our Constitution and checks and balances is that there are safeguards built in to remember historical precedence. This has the effect of reducing some absolute, ideal, contingent possibility and places probabilities on future outcomes. Could all the weight of historical precedence be wrong? Yes, and we have a process to address that which makes breaking the law unnecessary and an extreme alternative to change. To suggest that the extreme of breaking the law is the rule or the best solution is to introduce entropy into the system which does not make it stronger but has the real probability of weakening the system and encouraging anarchy (literally no rule or law…in classic Greek no origin which was changed by later Latin-ization to no domination, rule or authority). I think Rosa was punished by living in Montgomery at that time. I would recommend that you read the actual laws Montgomery passed here (http://www.blackpast.org/?q=primary/browder-v-gayle-1956). The main punishment was the driver kicking Rosa off the bus but it was possible for it to be a misdemeanor. Snowden did not commit a misdemeanor…he committed a felony. A felony and a misdemeanor are very different in severity. Are you suggesting that riding on the back of the bus is the same as violating federal law and possibly endangering lives or doing great harm to others?
“Are you saying that what Rosa Parks did was at the time legal, or that because the law she broke was subsequently found unconstitutional that what she did was legal? “
No, not at all, it was illegal in Montgomery but went against huge precedence and existing federal law starting with the 14th Amendment (which is how it was struck down). Legality is not monolithic. Proportion dictates that you make distinctions between violating city ordinances and federally established law and precedence. This is the point, not all things are the same in this matter. There are magnitudes and proportions that matter. Aristotle was very much aware of the Sophists attempts to conveniently forget proportion and magnitude and imply all things in a certain matter were the same…otherwise, called equivocation, a logical fallacy. Rosa Parks did not violate federal law and precedence but an unconstitutional civil ordinance – this is a difference that should not be minimized by equating Snowden’s felonious and potentially harmful action to this.
“If the later, then by analogy the Supreme Court could decide that the programs leaked by Snowden are also unconstitutional, in which case Snowden has leaked illegal behavior – which makes him a whistleblower.”
Again, a hypothetical does not a case make but I would suggest if what you suggest could happen, he still broke the law, a felony, and endangered others by revealing sensitive classified information. My main concern with his disclosure is not for professional terrorists as they are well aware that all major governments and private businesses can and will monitor their communications. I think the real damage was for the “lone wolf” scenario where not so bright, wanna be terrorists may have been more prone to using public communications without knowing the techniques the NSA had at their disposal to track them down…now they know and that could be used in a nefarious way.
“Are you also saying that its always illegal to leak classified information no matter the nature of that information? I’m not a legal expert, but if that’s true I frankly don’t care. It’s always in the interest of the powers that be to classify illegal or immoral behavior. I’m more afraid of the society that we would have when a government can endlessly hide behind secrecy than the one we would have when brave individuals leak wrongdoing.”
I am saying that it is always illegal to leak classified information and I really think you should care. It is not up to you to haphazardly declare what is moral and legal and impose that on others. Folks that actually do this are called criminals. Snowden decided that the information he disclosed was immoral and illegal unilaterally. Many of us disagree with him and elected representatives to create laws to protect us. I do think in the Bush administration it crossed the line but I worked the system to do my part and through our system of government, the inequities were corrected and ruled unconstitutional. I think there is still work to be done but it is not fair to the rest of us that work the system to have someone unilaterally decide and impose their preferences on the rest of us. The government is not your worst enemy unless you are a revolutionary and want to overthrow the government. Our worst enemy is lawlessness and an Afghanistan style government. I was unhappy with the Bush administration but I took it to the voting booth along with my financial support. I despised paying taxes for Bush’s wars but I did not become a radical tax dodger and quit paying taxes.
Mark
June 20, 2013 at 4:08 pm · Reply
“The way that I see it:
The “system” you are supporting is less likely to lead to social upheaval but has fewer options for combating the tyranny of the majority or tyranny of the minority which takes advantage of the ignorance of the majority. The “system” I am supporting has more options to combat those things, but is more vulnerable to the anarchist pressures you have described.
Does that make sense? The things each of us see as a strength of our system is also a weakness. It’s like the cartoons where the character uses their finger to plug a leak only to make another one pop up someone else.”
I would suggest that what we have in Snowden is the tyranny of the minority. Republicans have yet to figure out they lost the election and have subverted the majority from day one in the Obama administration. Are you now equating the “tyranny of the majority” with “ignorance” and therefore incapable of legitimacy? Are you equating “tyranny” with tracking phone meta-data, phone number source and destination…is this tyranny? I would suggest proportion and magnitude are lost in this equivocation. I thing real change in our system may be slow and bumpy but overall I think it works better than anything else that has been attempted in human history. I think that it is worth taking the slow approach and not taking illegal actions and pronouncing huge, sweeping judgments about the illegitimacy of the system unilaterally…especially when it potentially harms others…Rosa Park’s action is not of the order that Snowden’s actions are and it is strikes me as a huge logical fallacy to imply their actions are the same. It seems to me like it supports an underlying, unfalsifiable ideology, otherwise called narcissism. That is not heroic in my book…it is detestable.