Edward Snowden is on the run somewhere in Moscow (or Ecuador?), and prominent U.S. politicians on both sides of the aisle are calling him a traitor and demanding his capture and arrest. What are we to make of the National Security Administration’s secret surveillance program leaked by Snowden? Is it a reasonable search and seizure in which privacy must give way to concerns for national security, or rather an unjust intrusion into privacy?
The right to privacy is enshrined in the 4th amendment to the U.S. Constitution. That amendment secures individuals in their “persons, houses, papers, and effects, and against unreasonable searches and seizures.” This right is grounded in human nature itself; it is an absolute requirement of the free agency that characterizes us as rational beings.
But this privacy right has its limits. The 4th Amendment, after all, protects only from unreasonable searches and seizures, and sets the conditions upon which a search warrant shall be issued by proper authority. The Obama administration contends that the NSA program is being pursued under proper authority (i.e., the Foreign Intelligence Surveillance Court), and that its narrow intrusion into the privacy of U.S. citizens is more than compensated for by the dozens of terrorist plots that it has helped foil.
The details of the NSA program still remain obscure, and make judgment of its legality difficult. Apparently, the program conducts sweeping surveillance of the telephone activity of millions of Americans, collecting the phone numbers and the duration of calls, though according to President Obama, not the content. There is suspicion that the program also collects the header information from emails. The program further targets the Internet activity of foreigners living abroad, not Americans.
Yet even Sen. Richard Durbin from Illinois, the second highest-ranking Democrat in the Senate, has complained that Congress has not been sufficiently informed of the program’s activities. And the ACLU, not a usual enemy of the Obama administration, has filed a lawsuit against the NSA program claiming that it not only violates the 4th amendment, but also the 1st amendment and section 215 of the Patriot Act.
The NSA’s broad trolling of information seems to many like a small price to pay for victory in the war on terror. But the very secrecy of this program raises reasonable anxieties about what the government is up to and what it might possibly do covertly in the future. There is no good reason why the program – which had its origins in the George W. Bush administration – could not have been a matter of public debate and full congressional oversight before its initiation.
But there is an even larger question raised by these disquieting revelations, a question about the very character of the U.S. regime. It may well be that the NSA program produces some good consequences, but even apart from the question of privacy, is this the kind of regime that we want to let operate with so much secret power? The state’s habit of acting beyond its assigned powers – as we see, most recently, in the Obama administration’s HHS mandate and the IRS’s targeting of non-profits at odds with the Obama agenda, but also, going back further, in the Supreme Court’s catastrophic creation of an abortion “right” – is becoming so entrenched that we have to seriously ask whether our regime has surrendered its moral legitimacy.
In this context, Snowden’s revelation of the program might be construed as an act of civil disobedience, an attempt to remind the state that it is usurping powers that do not belong to it. But a little caution is needed here; we need to know more about Snowden’s motives for blowing the whistle on the program, as it could still come to light that he has been in league with some other nation. However, given what we know of his motives so far, it seems that Snowden’s actions were intended to alert the nation to an illegitimate intrusion of privacy.
Jonah Goldberg, writing in National Review Online, finds it curious that Snowden in his defense would appeal to any ideal transcending the interests of the state:
But Snowden here is not suggesting that non-U.S. citizens have rights under our Constitution; he is merely acknowledging that there are political truths that transcend the interests of particular regimes, truths that, like those found in the 4th amendment, are grounded in human nature. It is precisely because the U.S. government has lost sight of these transcending truths that we have every reason to be alarmed by the NSA secret surveillance program.
Daniel McInerny is an author, journalist, and brand storytelling strategist at The Comic Muse. He can be contacted at daniel@thecomicmuse.com.
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