“Power tends to corrupt, and absolute power corrupts absolutely.”
–Lord Acton (1834-1902)
“All that is necessary for the triumph of evil is for good men to do nothing.”
The onward push of technology in general, and information technology in particular, brings George Orwell’s vision of Nineteen Eighty-Four (1949) and Aldous Huxley’s vision in Brave New World (1932) more clearly, more palpably into view.
For a more contemporary example, see the German film, Das Leben der Anderen (“The Lives of Others”), which received an Oscar nomination for Best Foreign Film in 2006. The movie is available in English, French, and Spanish, as well as the original German.
Technology’s relentless push places new capabilities in government officials’ hands, as new tendencies toward the creation of totalitarian instruments of oppression appear to sweep past all legal, historical and cultural restraints.
The new mantra of governments in democractic countries where minimal oversight and control of government actions still exists to some degree is that, “We do it because we can do it.”
Justifications are not lacking, for zealous officials in their efforts to control terrorist and other threats.
“What if,” they ask, “a nuclear bomb were exploded by terrorists in a major city?” Citing such examples, they conclude that everything is justified, and nothing is excluded.
The requirements of necessity and proportionality that existed in the past are increasingly lost. Thus, to protect society against terrorists, military and intelligence agencies move relentlessly toward doing everything they can to forestall both perceived and inchoate threats.
The relationship between ends and means–of central importance in both domestic and international law–is lost among officials who have succeeded in forging a secret dominion of secret action, where they are not in any meaningful sense held to account. Over time, they secure the acquiescence if not the enthusiastic support of elected government officials, and even of some judges. They develop doctrines such as the “state secrets privilege” which governments invoke to avoid judicial review of the legality and constitutionality of their actions and programs.
At the same time, the number of individuals employed by the government and its contractors to protect the population and the state grows astronomically. Powerful commercial interests become fused with the technologoical imperatives and the drive to create ever greater capabilities–and to use them.
The national security officials pushing these programs frequently come from intelligence backgrounds where they are not accustomed to conducting their activities in a manner in which they are held to account before the constitution and the law.
Consequently, as we enter 2014 we are being pushed headlong into a future where the state holds in its hands incredibly powerful instruments of totalitarian control. The government, citing the need for secrecy and the classified nature of the information required for legal challenges, does everything it can to avoid effective judicial and constitutional review of its actions. Legal memoranda justifying secret programs are themselves held secret on the theory that their publication would undermine free and vigorous debate among government officials.
The paradoxical result is that while government lawyers are arguably freed up to produce legal justifications that will never see the light of day, citizens and their representative are denied their right to assess whether the government is acting within the law and the Constitution.
In the end, because in a democracy secret legal justifications lack validity and can have no legitimizing force, the government in effect simply fails to offer any legal justifications for its secret operations. The rule of law is broken, as the government operates outside the framework of legal and constitutional accountability which is the bedrock of a democratic state governed by law.
These are matters which are abundantly clear to first-year law students, but not apparently to ranking lawyers within the Executive Branch in Washington.
A government which proceeds in this manner has gone outside the framework of constitutional government under law. Secret laws, secret legal analyses, secret programs and secret activities whose legality cannot be assessed, are deadly assaults on the rule of law.
Yet they continue. They continue with the full backing of President Barack Obama, as revealed through his actions. Here, as elsewhere, we need to watch what the president does, and not what he says.
We assure ourselves that our elected representatives will safeguard our freedoms even in this new world where everything is known by government officials, and large private organizations such as Google and Facebook.
Yet when someone like the Director of the CIA, David Petraeus, is suddenly forced to resign over an affair after his e-mails somehow become known to intellgence officials shortly after the FBI tells him that their investigation has ended and that he will not be the subject of further inquiry, no one insists on knowing what legal authority the FBI used to secure these e-mails. No one demands to know why FBI Deputy Director Sean Joyce called David Clapper, the head of the NSA, on November 6, 2012 (as election results flowed in), and told Clapper about the affair, or why Clapper immediately called Petraeus and strongly urged him to resign. Were the e-mails obtained through abuse of an FBI or NSA program? No one dares to focus on this question, or to investigate it tenaciously to the bitter end. No one is held accountable.
Edward Snowden’s revelations in The Guardian and other leading newspapers throughout the world have opened a window through which we can now see how absolutely without limits U.S. intelligence agencies have conducted surveillance and made copies of the communications of everyone in the world, including those in the United States.
We know these capabilities have been and are used to identify individuals who become the objects of targeted killings by drone strikes, without judicial process, even when as in the Anwar al-Aulaqi case the target is a U.S. citizen.
We trust that these capabilities will never be “misused” by our government officials, while casting a blind eye to how similar capabilities are currently being used by dictatorships to root out and if necessary to destroy their opponents.
We want to think, “It couldn’t happen here.”
But in a sense it is already happening here. These activities–which seem to clearly violate the Fourth Amendment’s prohibition of unreasonable searches and seizures, if the words in the text and two centuries of constitutional interpretation have any meaning–have already had a chilling effect on free speech in the United States, and elsewhere. The precise text of the Constitution is worth recalling:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Writers and journalists already weigh their words carefully, and the topics on which they choose to write. Self-censorship makes insidious inroads into habits of free thought. Many are in denial, and are loathe to admit that they themselves censor what they write.
But engage a writer in a deeper conversation, off-the-record. Cross-examine a writer as to whether the current climate–resulting from the government’s surveillance operations, its extremely aggressive prosecution of any who have made classified information public, and even reporters to whom such information has been leaked– has affected any of their decisions regarding what to investigate, what sources to use, and how tenaciously to pursue their investigation, and you may be surprised to learn the degree to which writers and journalists are already pulling their punches.
What can be done?
Our answers to this question will be duly recorded by government surveillance programs and operatives. Of that we can be sure. Does that fact in and of itself affect our answers? If it does, extra courage may be required if we are to come up with effective plans of action to defend our liberties.
Still, is there any amount of collective courage that might be summoned, in a country which has nurtured and protected the freedoms guaranteed by the Constitution for over 200 years, to reverse this onslaught of technological and commercial imperatives, growing government secrecy, and the creation of increasingly powerful instruments of totalitarian control?
If we don’t speak out and take corrective measures now, when will we? Can we imagine that it will become easier in the future? In the words of the Talmud, “If not now, when?”
Does anyone remember J. Edgar Hoover, and the abuses he committed with far fewer tools at his command?
How long can we assume that those who hold (or in the future may hold) these extraordinary and growing powers and the power of the state itself in their hands, will always act benevolently and to uphold the rule of law?
The Trenchant Observer