On Friday Jack Balkin posted something over at Balkinization about the relationship between surveillance and the so-called 'war on terror' that I think merits attention (see here). You see, according to Balkin, the fundamental issue is not whether more surveillance is either necessary or prudent--he thinks it is--but rather whether it should be brought within the scope of the law--he thinks it should. As he says:
The foiled London airport bombing plot yesterday reminded us that surveillance and intelligence will be necessary to prevent future attacks on Americans. The choice is not whether we should or should not engage in such surveillance and intelligence. The choice is whether we will do so legally.
I don't know whether NSA domestic surveillance programs were important in providing needed intelligence to stop the bomber's plot. I will assume that they were. What lesson should we draw from that fact? The right lesson is that these programs are important and that some version of them will be part of our country's governance for the foreseeable future. The wrong lesson is that because they helped us they should continue to operate outside the law.
As we move toward a national surveillance state, government officials will convert what began as emergency strategies into long term forms of governance. Domestic surveillance in some form is here to stay. It is not a temporary or emergency measure. Because it is here to stay, it must be placed firmly and squarely under the rule of law. If we do not do so: if we say to ourselves-- "how wise our leaders were to break the law so that we could be safe"-- we will create a Frankenstein monster. Again, I repeat: The issue is not whether our government should engage in information collection and analysis to safeguard us against asymmetric warfare and terrorist plots. It should. It must. The issue is whether we will let the executive do so without legal accountability, without the checks and balances necessary to ensure that people who believe they are acting in the country's best interests do not abuse their authority because they are so certain that they alone know how to keep us safe , and refuse to listen to anyone else-- or even feel that they must be accountable to anyone else.
While I obviously agree with Balkin that if far-reaching surveillance programs are here to stay, they ought to be brought within the confines of the law, I disagree with him that, "the issue is not whether our government should engage in information collection and analysis to safeguard us against asymmetric warfare and terroristic plots."
As far as I can tell, the question of whether surveillance is both necessary and prudent is the most fundamental issue at hand. After all, even if Balkin is correct that these programs are here to stay, it is unclear whether they should be here to stay. To think otherwise is to assume from the start that the benefits of the spying programs--whether domestic or international--outweigh the costs. By my lights, it is at least an open question whether this assumption is correct.
Of course, if we follow Balkin's lead and simply agree with the administration that these programs are necessary for our safety and security, we should also follow him in rejecting the administration's view that these programs (and the people who implement them) ought to be above the law. Balkin is clearly correct that if we are going to give our government such an awesome power, we certainly ought to make sure that the uses (and misuses) of this power are subject to checks and balances, due process, the rule of law, judicial review, etc.
But am I the only one who thinks more thought ought to be given to the antecedent question concerning the necessity and prudence of these programs in the first place? After all, this is not about whether I am allowed to carry shampoo onto my next flight or whether I have to take my shoes off before going through the metal detector at the airport. This is about whether the government should have the power to collect data concerning all of my emails, phone calls, web-browsing habits, financial transactions, etc.
Is it truly worth sacrificing one's privacy if all one gets in return is a little security? Surely the citizens in Orwell's Oceania are safer than they were before INGSOC--but is the price for this security too high? I, for one, might prefer to run the risk that I could be the victim of a future terrorist attack to allowing my government--run as it is these days by the war-mongering and liberty-hating puppets of big business--to peer into every facet of my personal life all in the name of my supposed safety.
That someone as important as Balkin dismisses this issue from the start is an ominous sign of things to come. I, for one, take seriously Benjamin Franklin's well-worn admonition that, "they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." This is not simply some cliche dredged up for rhetorical purposes. It is a penetrating observation that strikes at the very heart of the issue that we should all be taking very seriously indeed--the very issue Balkin would have us entirely ignore.
*Cross-posted at truth to power (with open comment thread)
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