The news reports about the federal government’s programs of data collection from phone companies and Internet porthole/search-engine providers have troubled many of us, especially as they come on top of recent stories about
- the unfolding investigations into the IRS’ politicized handling of tax-exemptions,
- the politicized handling of the Benghazi affair (both before and after the terrorist attack),
- the Justice Department’s seizure of press records,
- Health and Human Services’ shakedown of private companies to provide funding for Obamacare that Congress had refused to authorize, and
- Secretary Sebelius’ recent cold and flippant reaction to the plight of young cystic fibrosis patients
—and all on top of years of growing assertions of responsibilities and power by the federal government.
Regardless of what we may think should be the consequences for Mr. Snowden’s leak of top-secret details of the data collection programs, we need to step back and debate all of these programs and “scandals” wisely. As Kipling said, we need to keep our “head when all about you are losing theirs ….” This debate may be, and frankly should be, one of the most consequential our generation will have about the future of our relationship with our government. If we get the answers wrong, we could leave our children and grandchildren with a country that we would not have wanted to inherit from our parents. But to get the answers right, we have to ask the right questions.
To get the questions right, we must remember the circumstances in which we now live:
- We have been in a constitutionally-declared state of war for almost 12 years—longer than any declared war or military engagement in our history;
- We are in the fifth year of the worst economic slowdown since the Great Depression—I am not sure that we have ever fought a prolonged military engagement during such an economic crisis;
- We are at the end of a generational shift in political power from the Depression/World War II generation and the Baby Boomers, to the Baby Boomers and their children;
- We are in the midst of profound demographic changes within our society; and
- We have transitioned into a society that depends on electronic media for most of our daily public and private interactions.
Before I go further, please wrap your mind around these changes that we continue to live through—any one of these would have significantly impacted our daily lives and society, but all of them overlapping at once is a watershed event in our history with profound implications for the future relationship between our liberty-oriented society and our government. Each of these developments foreseeably would have created unique political pressures to expand certain functions of our national government, at least temporarily. But taken together, they are having a tsunami effect on the traditional limits on the power, or the exercise of the power, of our federal government just as the capability to expand the exercise of that power through electronic media has never been greater.
And it is the power that we have allowed our federal government to amass and exercise over the last 12 years that we must now question—not how the power has been exercised or whether it has been abused, but whether the government should have such power to exercise at all—even during wartime, and even if the capability exists to exert and exercise that power wisely and fairly.
For instance, many of the politicians and pundits over the last few days have cited to the Supreme Court case of Smith v. Maryland, 442 U.S. 735 (1979) to support the government’s exercise of power to gather in bulk the phone records of American citizens; and then they cite to the need for such information in our War on Terror, to the protections provided by the overlapping oversight of the program from Congress and Judiciary, and to the fact that no one has uncovered an abuse of the exercise of the power. While these people focus on the existence of the data, the capability to obtain the data, and the exercise of the power to obtain the data without a warrant, no one mentions the most fundamental issue—where does the power to obtain the data come from in the first instance, with or without a warrant?
It is true that the Supreme Court did allow the government to obtain from a phone company the phone numbers dialed by a citizen without first getting a warrant, because the citizen had forfeited any privacy interest in the phone numbers he dialed when he agreed to dial them through the phone company’s lines. The problem is that the facts of that case differ in one very significant way from the program the government has implemented now: in Smith, the police had identified the suspect and asked the phone company to use a pen register to obtain and turnover the numbers dialed by that suspect only; the phone lines and the general data collected and stored for use by the phone company remained in the possession of the phone company, which controlled how long and for what purpose the data would be used.
Unfortunately, two successive administrations have now used the war powers granted them by Congress to apply a rule of law developed and applied to a very narrowly-focused criminal investigation to a society-wide dragnet to copy and retain privately-collected, owned, and stored data for the government’s perpetual use. In essence, all privately-created transactional records related to every citizen’s use of their phones and computers, which could have been accessed by the police in discreet cases in the past without a warrant, now have been converted to perpetual public records through this dragnet. Regardless of how effective this program may have been to provide our government with access to data that led it to thwart planned terror plots, I find nothing in the constitutional war powers triggered by Congress’ post-9/11 authorization that grants our national government such sweeping power to gather and archive such private data for eventual searches, even if such searches are conducted only after obtaining judicial authorization. The facts giving rise to the rule and reasoning in Smith simply don’t support the grant of such broad power to the federal government. If the government does not have the power to engage in a mass gathering and archiving of private data, whether the government exercised that power properly is an irrelevant question.
However, the breadth of the grant of power to the federal government does have a direct relationship to the competence of a government to exercise its any of its responsibilities. What the facts underlying all of the recent “scandals” and revelations have in common is an apparent incompetence within our government caused by its attempt to exercise ever-expanding power that it was never intended to possess—from the overreaching IRS employees, to the befuddled and behind-covering state department staff, to the misleading and misdirected prosecutorial actions at the Justice Department, to the imperious actions and judgments of the Secretary of HHS, and now to the overwhelmed NSA that has had to outsource top-secret data-mining to community-college dropouts with loose lips. Instead of creating a benign, Magical Kingdom of Obama’s dreams, our national government is beginning to look and act more like something out of an old Marx Brothers’ movie.
But the inevitable consequences from this over-reach are not funny. When the President told us the other day that you can’t have 100{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} security and 100{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} privacy, I had three immediate thoughts:
- “well, duh!”—that’s the nature of trade-offs that come with every human endeavor;
- not even a police state can provide 100{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} security, so why are we expanding the power of the government to achieve a goal that it is impossible to achieve, while risking institutionalizing the expansion of authority and loss of liberty for generations to come? And
- where in the Constitution did we grant this power to the federal government?
Yes, we are still at war, and we are at war with a network of groups and states that is unique in our history. But ask yourself these questions:
- Did Jefferson claim this power during the war against the Barbary Pirates?
- Did Madison claim this power as the cities across the Eastern Seaboard were being overrun by the British during the War of 1812?
- Did Lincoln claim this power during the war against the Confederacy?
- Did Wilson claim this power during World War I?
- Did FDR claim this power during the war against the Nazis or the Japanese?
- Did Truman claim this power during the Korean War?
- Did Johnson or Nixon claim this power during the war against Vietnam?
Although each of these Presidents, and others (including Polk and McKinley) pushed to, and sometimes beyond, the constitutional limits of recognized war powers, none of them tried to say that they could expand the federal government’s power as far as Bush and Obama have done to gather and archive—and later search—private data on a society-wide scale in a misguided effort to provide “100{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} security.” Arguably, this action is the electronic equivalent of an exercise of martial law—a power that has been used sparingly, and in only isolated circumstances and locations, by prior administrations during wartime—even during the Civil War. Just because we have the technological capability of centrally gathering and archiving such data, doesn’t mean that we have given our government the power to use that capability on such a sweeping, permanent scale— and it certainly doesn’t justify actually doing it without a grant of such power from the people.
As the inevitable hearings and investigations into all of these matters continue, let’s ask our Congressmen and media to ask this fundamental question: Did “we the people” ever grant to the federal government the sweeping power to engage in these programs, during either wartime or peace? If the answer is “no,” then we need to have an honest and open debate that clarifies and re-balances the law, one way or the other, in response to that answer—the nature of the country that we leave to our children and grandchildren hangs in the balance.