Let me start out with words advanced by both Justice Robert Jackson (chief American prosecutor at Nuremberg) and Justice Arthur Goldberg (U.N. Ambassador during the Johnson Administration after leaving the Court): The Constitution is not a suicide pact.
The premise of that statement is quite simple. Despite what we might like to think, there is no such thing as an absolute right. Rights end when they bring harm upon, and conflict with the rights of, others. For example, if your religion calls for you to go out and assault one person every day you will not be able to claim freedom of religion as a defense in the subsequent criminal trial. Instead, you will be convicted and, depending upon the severity and frequency, be sentenced to a term of incarceration.
This same premise holds true when it comes to national security and the responsibility of our government to keep American citizens safe. To start with, it must be asked what is the primary purpose behind the government action in question? Is it a standard criminal investigation with the ultimate of bringing a prosecution? Is it an attempt to collect intelligence to thwart a terrorist attack directed at United States citizens or at American soldiers?
The distinction between the two might not seem particularly important, but it actually is of the utmost importance. The former instance is exactly what the Fourth Amendment was designed to for to limit government power. Much of our Bill of Rights is inspired by (and lifted from) the English Bill of Rights, acceptance of which was a condition of William and Mary taking the throne. Another was the old English maxim that demonstrated the power of government to squelch dissent:
The latter, especially because it comes to matters of national security, affords the government some degree of greater deference, although not absolute deference.
The purpose of the overwhelming majority of surveillance recently in question is to obtain intelligence related to potential attacks against the United States or against American citizens. These actions are not taken with the primary intent of seeking criminal prosecution. If and when alleged perpetrators are captured, and subsequently prosecuted, there is a simple remedy available to the courts if their rights have been violated: the evidence collected from the violation of their rights, as well as all additional evidence flowing from it (fruit of the poisonous tree) is excluded from evidence.
Now, the more difficult question of what, exactly, represents the appropriate role for government and the extent of governmental powers. Benjamin Franklin famously wrote:
They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.
It is not an absolute (although often paraphrased in such terms). It also recognizes the bargain that exists between government and its citizens as part of the social contract. We do give up a certain degree of liberty in exchange for the law and order that comes with government. We do so on the premise that our life and liberty are better preserved in this manner than if had the theoretical absolute liberty that would come in the absence of government and laws.
There has been significant government overreach the past twelve years in the name of ‘national security.’ The concept of warrantless wiretaps within the United States is particularly egregious because the laws that established the FISA court already permitted the government to retroactively apply for a warrant after the commencement of wiretapping. It needlessly discarded a protection put in place for a specific reason. That is exactly the type of overreach with which we should be immensely concerned.
On the other hand, it is reasonable to expect the government to respond according to its responsibility to keep our country safe. Whether we wish to admit it or not, the country, as a whole, was largely in a lull about the threat that terrorism posed prior to September 11, 2001. Yes, here in New York we were more cognizant about it because of the first World Trade Center bombing in 1993 and the other various thwarted attacks. Even here, however, there was some degree of lull. The problem is not that the government sought additional mechanisms to respond to this threat, but that it used the attack as an excuse to overreach.
Throughout history the government has never sought a warrant to intercept communications between persons fighting for, or leading, the enemy. We certainly did not seek a warrant to intercept and decipher Japanese communications before the commencement of World War II, nor did we seek a wiretap to intercept and decipher Soviet communications during the Cold War. No such responsibility attaches itself here when dealing with foreign terrorists operating on foreign soil with the intent to orchestrate attacks within the United States or against American targets overseas.
When it comes to U.S. persons, or to persons in the United States, my own view is that the FISA system previously in place generally worked well. One change I would make, however, is to permit greater intelligence sharing between agencies. Before that rule was changed after September 11, it was a significant hinderance to our ability to thwart terrorist attacks.
As for concerns about privacy, my own view is that the internet and social networking sites (such as Facebook and LinkedIn) have reduced expectations concerning privacy. No expectation of privacy attaches to information publicly available on those sites. If a person wishes to retain their expectation of privacy with respect to that information, then they should not post it in a publicly accessible forum.
Finally, I do believe that significant oversight is required for any and all of these programs. That means robust oversight in all three branches of government. This includes regularly informing the public in a manner that effectively communicates the scope of the program and the types of persons targeted, but, at the same time, protects intelligence assets and legitimately classified information. Furthermore, I believe that the press has an important oversight role to play in reporting the information. That does not mean acting as a manager for sources, but rather simply good, old-fashioned, reporting. To borrow the famous words never actually uttered by Joe Friday, “Just the facts, ma’am.”
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