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President Obama’s much-anticipated speech on reforms to the runaway National Security Agency began with a bad history lesson and only got worse.
“At the dawn of our Republic, a small, secret surveillance committee, born out of the Sons of Liberty, was established in Boston,” he said. “Throughout American history, intelligence has helped secure our country and our freedoms.”
But if there were anything akin to the NSA’s mass surveillance of millions of Americans on the basis of a single, secret court ruling or the FBI’s infamous national security letters issued without a prior judicial ruling, it would be King George III’s regime of general warrants and writs of assistance, which allowed British custom agents to search any private residence.
If Lord North’s government had metadata rather than muskets, the Revolution would have failed, with the Founding Fathers jailed and executed for treason. James Otis, Jr., coiner of the “taxation without representation is tyranny” motto and—most importantly—Harvard Class of 1743, for five hours inveighed against writs of assistance in the 1761 Paxton Case, calling them “the worst instrument of arbitrary power … ever found in an English law-book.”
Few provisions of the Constitution were so directly shaped by colonial experiences as the Fourth Amendment. It declaimed: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
Now, the one-time constitutional law professor defends the unconstitutional and legalizes the once illegal. In classic Obama fashion, the speech largely endorsed the claims of his critics while also censuring them for not trusting his vaunted judgment.
Half-hearted and superficial as they were, the reforms that President Obama endorsed on the recommendations of his review panel—installing a privacy advocate in the secretive Federal Intelligence Surveillance Court and requiring judicial orders to search metadata databases that the government would no longer house—are tacit acknowledgment of a system gone awry.
To underscore this point, it is far from certain that these programs actually work. An exhaustive report from the New America Foundation debunks the much-inflated successes of the security state, finding that “surveillance of American phone metadata has had no discernible impact on preventing acts of terrorism.” Judges bemoan the agency’s “systemic” violations and evasions. Even a Deputy Director of the NSA, John Inglis, was forced to concede that the bulk data collection had prevented at most one terrorist attack.
But while the administration acknowledges that there were legitimate concerns with the scope and size of the surveillance programs and “welcomes a discussion of the tradeoffs between security and civil liberties,” it still relentlessly pursues the man who triggered the debate, Edward Snowden, for violations of the Espionage Act.
The American people had as much right to know their government had secretly misconstrued a section of the Patriot Act on the basis of secret judgments issued by secret courts to intrude on the privacy of millions as they did to learn the information Daniel Ellsberg leaked via the Pentagon Papers to The New York Times. They had as much right as they did, when burglars broke into an FBI office in 1971, to see the details of J. Edgar Hoover’s racist, petty, and vindictive surveillance of a laundry list of suspected dissidents from communist organizers to Martin Luther King Jr. and John Steinbeck.
For every period of civil liberties overreach in American history, self-correction has inevitably emerged. Hoover’s excesses and Nixon’s messes gave rise to the Church Committee, whose recommendations are the backbone of current surveillance law. The Federalist Party’s Alien and Sedition Acts threatened to derail the nascent republic, but President Jefferson wisely let the Sedition Act expire rather than continue to wield it against opponents. (Unnervingly though, the Alien Act, allowing the president to eject unnaturalized citizens of a foreign country at war with the U.S., remains on the books.)
The glacial pace of Obama’s reforms and his sly insistence on congressional debate—where all bills but the Helium Stewardship Act or Small Airplane Revitalization Act die slow, painful deaths—all but ensure that the self-correction has yet to arrive.
But Obama can start by granting Snowden the clemency he deserves.
To close with another history lesson: In 1777, Commodore Esek Hopkins of the Continental Navy assisted in the torture of British sailors. Two whistle-blowers, Richard Marven and Samuel Shaw, reported the misdeed to Congress, which duly relieved Hopkins of duty. Hopkins promptly sued Marven and Shaw for libel.
Congress, rather than shirk, instead instructed a certain “Sam. Adams” to see that the gentlemen’s legal fees were paid and enacted its first whistle-blower protection law on July 30, 1778, noting, “It is the duty of all persons in the service of the United States … to give the earliest information to Congress of any misconduct, frauds, or misdemeanors committed by any officers or persons in the services of these states.”
Edward Snowden did just that, and he shouldn’t have to live a life of exile and infamy for it.
Idrees M. Kahloon ’16, a Crimson editorial executive, is an applied mathematics concentrator living in Dunster House. His column appears on alternate Tuesdays.
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