Thursday, June 13, 2013

The Snowdens of Yesteryear

I've told this story before.

It was back when I was Legal Director of the ACLU of Ohio, and I was to be debating some hot-shot law school professor from some hot-shot law school and about the USA Patriot Act and other post 9/11 measures that involved ceding liberty for the illusion of greater safety.  And, not incidentally, we weren't to know the details, because if they told us, they'd have to kill us.

National security, don't you know.

I'd done this gig before.  I talk about ephemeral benefits and how all these increased powers to protect us against terrorists are actually being used to catch drug dealers and on-line gamblers while invading the privacy of ordinary folks and how the government justifies all this by scaring the public with hypothetical stories of the horrors that could have been prevented and maybe were (but who knows because if they told us the truth it would have given away the store to terrorists) so it was all worth it.
And then he'd talk about protecting America and how we have to give up a bit of privacy for security in this new age.

So we flipped a metaphorical coin, and he went first.  And completely changed the script.

He didn't talk about safety or security or trade offs we had to make because 9/11 changed everything.  Instead, he said that the Pres (it was Shrub at the time, but that was irrelevant to the position he was staking out) had, per the Constitution, plenary unreviewable power to do whatever he thought best in regard to national security and defense.  We had no right to know what he was doing.  Congress had no oversight authority and any it attempted to exercise was unconstitutional.  Ditto the courts.  If we didn't like what he was doing (although we weren't to know what it was) our remedy was to vote him out of office at the next election and replace him with someone else who was to act in secret but whose acts (again unknown to us) we preferred.

Really, that's what he said.  Law degrees, government experience, law review articles, and all.

Which brings me to Edward Snowden and NSA and government secrecy and whistleblowers and finally to His Barakness who said,
I welcome this debate.  And I think it's healthy for our democracy.  I think it's a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.  And I think it's interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren't very worried about it when there was a Republican President.  I think that's good that we're having this discussion.
Which is, of course, vacuous bullshit of the highest order.  It might even be true except that it's almost wholly content free.  And where there is content, it's misleading.

See, there are these secret surveillance programs where they get everyone's metadata from Verizon and would never never get more and you can be sure because they said that everyone in Congress knows about it and knew about it and they all think it's hunky-dory including those who've been trying to complain about without revealing anything and those who despite knowing all about it are wholly ignorant of it.  And there's strict oversight by the courts which simply say, "how high?" when told to jump.  And it's all a secret from the American people because if we know, then so do the terrorists and if they know Verizon makes their data available to the feds then they'll switch their iPhones to AT&T and that'll make the whole thing worthless.

And ditto for the Prism thing and reading your e-mails and text messages and watching the youtube of your kid rolling around on the carpet in front of the TV or striking out at little league or performing in the school assembly or giving instructions on how to turn sudafed into speed.

And so while thousands urge President O to pardon Snowden as a national hero and others urge his assassination as a traitor (drone strike on Hong Kong, anyone?) DOJ plans simply to turn him into the next Bradley Manning and put him in prison forever - if they can just get their hands on him.  Because he opened the door to the candy store.

But the debate?  He welcomes it.  It's "healthy for our democracy."  Because, you know, the public should get to weigh in on and evaluate the trade-offs we're making between safety and security.  EXCEPT, OF COURSE, THEY HAVE NO RIGHT TO KNOW ANY OF THIS AND HAVE NO SAY.  (Or should that last have been in microscopic print like the fact that one side effect of the prescription drug advertised on TV is that it might turn you into a jellyfish - or a psychopathic killer?)

Over at Popehat, Clark wrote "Edward Snowden, F____ yeah!" which Matt Brown echoed.  Scott Greenfield thinks Snowden's mostly a distraction from the real issue - our lost privacy, a position aligned with Mark Bennett's call for action.
So what’s the solu­tion for those of us who are not will­ing to sell lib­erty cheaply?

We could take the Fried­man approach and say “this far but, golly gee, no far­ther please” in the assump­tion that by giv­ing up some free­dom we can pre­serve the rest. But this approach is doomed to fail­ure because even if we suc­ceed in fight­ing the last war, some­thing else will come along that jus­ti­fies, in the minds of the booboisie, less free­dom. Mean­while, the Fried­man approach trains the 99% to give up essen­tial free­dom for tem­po­rary safety, teaches the gov­ern­ment that we will not push back, and so has­tens liberty’s even­tual demise.

Or we could say “this will not stand” and teach the booboisie to push back. We might never get more than 50% on the side of lib­erty in the face of fear, but we do not need a major­ity to prevail.
What we do need, though, is to know that there's an issue.  Which is where Snowden comes in.  
I don't know, maybe he did jeopardize national security and a nuclear weapon will flatten Sioux City, Iowa because the FBI and NSA didn't find out that some guy with an area code in Saskatchwan has been texting to someone in  Portales, New Mexico.  Frankly, it doesn't seem likely.  I mean what he really did is confirm what the more cynical of us have understood for some time.

What they can, they will.
What power they have, they will abuse.

Justice Roberts, with whom I rarely find myself in agreement (and would he stop with that smirky smile, already), got this much exactly right in U.S. v. Stevens.
But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. 
What's true of the First is equally true of the others.  But it's true only if we push back.  And we can only push back effectively if we know where the front lines are.  Which is what Snowden and the Guardian have just told us.  Maybe.  Or maybe their the middle lines they've revealed.  Hell, it might even be the backfield.  But it's a starting point.

Let the debate Obama falsely claims he wants, begin.  And then throw it aside, because we don't need to talk about it.  We need to rise up and say "NO MORE."

Or we can join with Yossarian and ask
Where are the Snowdens of yesteryear?

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