The Snowden Affair

Upon Obama’s election, many speculated on how the American political landscape would be affected. Who’d have guessed that it only took a black president to dampen the right’s enthusiasm about police power.

One of life’s most vexing qualities is that it never supplies a counterfactual. Would the RNC have rallied behind a Bush President in the face of the Snowden affair? In 2005-06, when the original NSA warrantless wiretapping scandal broke, most conservative pundits and politicians defended Bush’s policy. The RNC attacked every moderate and liberal who criticized it. In the summer of ’06, you could find this headline at

“Liberal Judge Backs Dem Agenda To Weaken National Security – Ruling by Liberal Judge Against NSA Surveillance… A Blow to America’s National Security”

Bush eventually relented, agreeing to obtain warrants (in a closed FISA court) for electronic eavesdropping; and Congress changed the law to relax the warrant requirement. The RNC never rescinded its endorsement of Bush’s practices.

The charm of conservatives is that they stand for nothing in particular. Unlike Liberalism, conservatism is not a political philosophy, but merely a bag of junk crammed together by historical accident. Conservatism is entirely lacking in first principles, which allows conservatives to stake out any position under the sun. They’re really a mercurial bunch.

And so all these many years later (7), here’s where the RNC stands, as of this week, on this latest case of NSA eavesdropping:

“…every time an American citizen makes a phone call, the NSA gets a record of the location, the number called, the time of the call and the length of the conversation; all of which are an invasion into the personal lives of American citizens that violates the right of free speech and association afforded by the First Amendment of the United States Constitution…. the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution, which guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, that warrants shall issue only upon probable cause…. unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this program represents a gross infringement of the freedom of association and the right to privacy.”

It may take some time to absorb all that – a rambling RNC endorsement of the same bill of rights they’ve been gleefully hacking away at for more than 40 years. RNC “conservatives” might be shocked that according to Antonin Scalia, there is no constitutional right to privacy! Conservative judges have been busy eviscerating every protection and privacy interest named above: the warrant requirement, probable cause and expectations of privacy among them.

Now I know it’s fair to criticize Obama similarly – that he was a critic of Bush’s policies 7 years ago – and an advocate for expanded police power today. He’s making the same error many well-meaning executives fall into: pursuing policies that are expedient in the moment, but which carry grave threats downstream. He no doubt thinks of himself and his team as righteous dudes on a critical mission – and he damn well wont be the guy who blinks and lets a 3rd attack on Lower Manhattan happen on his watch – but the Republic can and will survive the leveling of a few more crowded office buildings. Our western tradition of sacrificing security for liberty will not, however, survive perpetual erosion beneath the onslaught of “war-time” presidents, during what may well be a perpetual war. The lesson one hopes conservatives will take away is that unchecked executive power is always bad – that the founders’ scheme of inserting a judge between the executive power and personal privacy is indeed a good thing – whether that power is wielded by white guys or by Hawaiian-Kansan-Chicagoans of Muslim-Kenyan ancestry.

As for the guy who brought all this to the fore: to the extent that Snowden revealed lawbreaking on the part of the Federal Government, he is a whistleblower, and should be afforded immunity from prosecution. But to the extent that he exposed legal, covert US operations abroad, he is a traitor, and should be captured and tried.

Searches and seizures of Americans’ private, personal phone records are undoubtedly subject to 4th am. protections – and the NSA clearly violated the balance between liberty and security elaborated by the US Supreme Ct.

But Angela Merkel, bless her soul, is not a US citizen or resident and is not entitled to protections under the US Bill of Rights. Eavesdropping on allied heads of state may be an awesomely stupid policy, but it is a legitimate policy choice, and well within the ambit of the US executive branch. Snowden, thus, did his country a great service in revealing lawbreaking on the part of its executive branch; he did a great disservice in exposing legal and legitimate covert operations abroad.

I close enigmatically with Lincoln’s not-famous-enough dalliance with the Writ of Habeus Corpus. An ancient common-law right, “Habeus Corpus” is a Latin term meaning “show me the body” – a demand by a court of an executive, to produce someone they’re holding and explain why holding them seems like a swell idea. “The Writ” isnt like other rights – it’s special. Unlike the rights of speech, assembly, religion, counsel, jury, etc., all of which got tabled in the summer of 1787, and only became law with the rest of the Bill of Rights a few years later, The Writ made it into the body of the Constitution itself (Art I Sect. 9).  – And for good reason: every other right you have depends upon a writ of habeus corpus to actually get before a judge to complain about the executive who done you wrong.

Less than 2 months after his inauguration, Lincoln suspended The Writ – denying some prisoners the right to appear before an impartial magistrate – that they might be held Gitmo style, without a day in court or a judge to say boo. This suspension was limited in scope, applying only to a small part of Maryland. But it came at a critical moment of the Civil War: Maryland was at risk of falling into Confederate hands. The Union Army captured and held several pro-Confederate Maryland Militiamen and, relying on Lincoln’s suspension of The Writ, refused to bring them before a judge.

No less a jurist than US Supreme Court Chief Justice Roger Taney heard the case (sitting not as CJ, but as appellate circuit judge) and decided AGAINST Lincoln – noting that Congress, not the President, has the authority to suspend The Writ, Taney ordered the executive to produce the prisoner. Lincoln ignored the order, and the controversy was soon enough mooted by other events.

In a speech to Congress afterward, Lincoln asked, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” He would later write, “…the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.”

In the more civilized parts of the Union, Lincoln is everybody’s favorite president – and he thought the Constitution was not fixed in its meaning, but that the trade-off between liberty and security could swing toward security as circumstance required – and as the president in his discretion determined….

“Those who would sacrifice liberty for security deserve neither” – not Lincoln, but Franklin gets credit for that one-liner. But those were different times….



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