REVELATIONS in the wake of Edward Snowden's civil disobedience continue to roll in. TheNew York Times reports that the Federal Intelligence Surveillance Court, also known as the FISA court, "has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come..." How is the FISA court like a shadow Supreme Court? Its interpretation of the constitution is treated by the federal government as law. The Timesreports:
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
Of course, there are important differences. None of the judges of the FISA court were vetted by Congress. They were appointed by a single unelected official: John Roberts, the chief justice of the Supreme Court. And then there's the fact that "the FISA court hears from only one side in the case—the government—and its findings are almost never made public." A court that is supreme, in the sense of having the final say, but where arguments are only ever submitted on behalf of the government, and whose judges are not subject to the approval of a democratic body, sounds a lot like the sort of thing authoritarian governments set up when they make a half-hearted attempt to create the appearance of the rule of law.
According to the Times, Geoffrey Stone, a law professor at the University of Chicago, "said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system." I'm troubled, too.
Meanwhile, the Wall Street Journal adds some meat to the story byreporting that "The National Security Agency’s ability to gather phone data on millions of Americans hinges on the secret redefinition of the word 'relevant'".
In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.
"Relevant" has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department's primary authority on federal criminal surveillance law.
Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a "secret interpretation" of the Patriot Act. The senators' offices tell the Journal that this new interpretation of the word "relevant" is what they meant.
Think about that. Doesn't that suggest to you that Messrs Wyden and Udall were afraid they might be subject to some sort of censure or reprisal were they to share with the public specific details about the official interpretation of the law to which the public is subject? And those specific details were about the interpretation of "relevant"? Now that that cat's out of the bag, I guess we're in danger?
All this somehow got me thinking of the doctrine of "democracy promotion", which was developed under George W. Bush and maintained more or less by Barack Obama. The doctrine is generally presented as half-idealism, half-practicality. That all the people of the Earth, by dint of common humanity, are entitled to the protections of democracy is an inspiring principle. However, its foreign-policy implications are not really so clear. To those of us who are sceptical that America has the authority to intervene whenever and wherever there are thwarted democratic rights, the advocates of democracy-promotion offer a more businesslike proposition. It is said that authoritarianism, especially theocratic Islamic authoritarianism, breeds anti-American terrorism, and that swamp-draining democracy-promotion abroad is therefore a priority of American national security. If you don't wish to asphyxiate on poison gas in a subway, or lose your legs to detonating pressure-cookers at a road-race, it is in your interest to support American interventions on behalf of democracy across the globe. So the story goes.
However, the unstated story goes, it is equally important that American democracy not get out of hand. If you don't want your flight to La Guardia to end in a ball of fire, or your local federal building to be razed by a cataclysm of exploding fertiliser, you will need to countenance secret courts applying in secret its own secret interpretation of hastily drawn, barely debated emergency security measures, and to persecute with the full force of the world's dominant violent power any who dare afford a glimpse behind the veil.
You see, democracy here at home must be balanced against the requirements of security, and it is simply too dangerous to leave the question of this balance to the democratic public. Open deliberation over the appropriate balance would require saying something concrete about threats to public safety, and also about the means by which those threats might be checked. But revealing such information would only empower America's enemies and endanger American lives. Therefore, this is a discussion Americans can't afford to have. Therefore, the power to determine that this is a discussion the public cannot afford to have cannot reside in the democratic public. That power must reside elsewhere, with the best and brightest, with those who have surveyed the perils of the world and know what it takes to meet them. Those deep within the security apparatus, within the charmed circle, must therefore make the decision, on America's behalf, about how much democracy—about how much discussion about the limits of democracy, even—it is safe for Americans to have.
This decision will not be effective, however, if it is openly questioned. The point is that is not up for debate. It is crucial, then, that any attempt by those on the inside to reveal the real, secret rules governing American life be met with overwhelming, intimidating retaliation. In order to maintain a legitimising democratic imprimatur, it is of course important that a handful of elected officials be brought into the anteroom of the inner council, but it's important that they know barely more than that there is a significant risk that we will all perish if they, or the rest of us, know too much, and they must be made to feel that they dare not publicly speak what little they have been allowed know. Even senators. Even senators must fear to describe America's laws to America's citizens. This is, yes, democracy-suppression, but it is a vitally necessary arrangement. It keeps you and your adorable kids and even your cute pet dog alive.
Now, I don't believe I've heard anyone make this argument, no doubt because the logic of the argument cuts against it being made. Yet it seems similar reasoning must underpin the system of secret government that has emerged from the examination of Mr Snowden's leaks, and I cannot help but suspect that something along these lines has become the unspoken, unspeakable doctrine of Mr Obama's administration. Yet I remember when the Mr Obama announced this:
My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
That would have been some real democracy-promotion, right here in the homeland. What happened? Is it naive to think Mr Obama really believed this stuff? I'll admit, with some embarrassment, that I'd thought he did believe it. But this "commitment" has been so thoroughly forsaken one is forced to consider whether it was ever sincere. It has been so thoroughly forsaken one wonders whether to laugh or cry. What kind of message are we sending about the viability these democratic ideals—about openness, transparency, public participation, public collaboration? How hollow must American exhortations to democracy sound to foreign ears? Mr Snowden may be responsible for having exposed this hypocrisy, for having betrayed the thug omertaat the heart of America's domestic democracy-suppression programme, but the hypocrisy is America's. I'd very much like to know what led Mr Obama to change his mind, to conclude that America is not after all safe for democracy, though I know he's not about to tell us. The matter is settled. It has been decided, and not by us. We can't handle the truth.
(Photo credit: AFP)