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American democracy and the NSA

We are asked by Obama and the NSA to trust the government, or to accept that the ends justify the means.

Imagine a government that spies on its citizens, often without warrants. A government that holds secret court hearings, or a government that asserts the right to detain and jail citizens indefinitely, in some cases in distant places away from family and lawyers. Or a government that asserts the right to hunt down and execute its citizens on suspicion of being the enemy. 

schultz portrait
David Schultz

Such a government we would describe as lawless, standing in contempt of human rights and individual liberties. It is a government some would describe as lawless. This is the government that some like Sens. Ron Wyden, Rand Paul and others think is beginning to emerge in the United States as a result of stories about NSA surveillance of telephone calls and e-mail messages. It is a government, they say, that needs to confine and define the discretion of public officials to prevent the violation of individual rights.

The hallmark of the a free society is a rule of law that limits the discretion of public officials to violate individual rights. A constitutional democracy is one where the government is subject to  legal limits, a respect for what legal philosopher Lon Fuller once called an “inner morality of law” that recognizes not simply formal procedural regularity but what political theorist David Dyzenhaus calls a substantive respect for freedom. Nazi Germany may have had procedural regularity, but it lacked the real respect for rights. 

No unbridled authority

Yes, public officials need discretion to make choices, but those choices cannot be made with unbridled authority. To a large extent this was the criticism of the American colonies when they asserted their independence from England in 1776. The Declaration of Independence catalogs a list of grievances and abuses of rights by King George III, including a failure to respect “laws for establishing judiciary powers.”  

There needs to be a balance established with the law, as publicly debated, defining the scope of discretion that public officials may exercise.

The American constitutional system was a reaction to the abuses by the king. It places both procedural and substantive limits on what the government can do. The due process and equal protection clauses are there to prevent arbitrary and capricious decisions and to ensure that every person is treated the same. The Bill of Rights places a substantive limit on what the government can do to people (may not abridge freedom of speech), and it demands, as stated in the Fourth Amendment, that the government needs to have particularized suspicion to search, detain, or arrest individuals. One cannot have a Captain Louis Renault (from the movie Casablanca) “round up the usual suspects” approach to investigating crimes.

But to many, 9-11 changed many things, including government respect for constitutional limits on its powers when it comes to respect for individual rights. It began with the Bush administration and continues under Obama. Recent revelations of the NSA surveillance programs  tracking telephone numbers and Internet data, along with the U.S. Postal Service photographing each piece of mail smack too much of an Orwellian Big Brother. These actions are taking place without warrants, or with warrants issued in secret court hearings by a tribunal that rarely denies a government request.  

This news comes on top of what we have known for years that  the federal government, dating back to the Bush administration, has been monitoring phone calls, that America citizens along with foreign nationals were held in Guantanamo Bay, or rendered to secret CIA facilities abroad and tortured, force-fed, and often detained for years without access to legal counsel or opportunity to appear before a judge. Or that the president now asserts the right to use drones to kill Americans abroad suspected of being terrorists, without respect for due process or proof  of guilt.

Maybe we’re safer, but we don’t know

The justification for all this is national security. Perhaps we are a safer nation for all this, but we do not know. It is the same government officials whom the law is supposed to restrain who are making the case for why their actions are justified. We are asked by Obama and the NSA to trust the government, or to accept that the ends justify the means. But how are we to judge whether these actions are justified if we even do not know about them unless individuals such as Edward Snowden leak or whistleblow?

This is not what a democratic government is supposed to do. Decisions about use of government authority to maintain national security should be debated in an open and transparent fashion. The government should be required in open court subject to public scrutiny to justify why it needs to monitor communications among its citizens, demonstrating that it has met the constitutional burden of particularized suspicion. This is what Americans fought a war of independence for, and it is supposedly what separates the United States from undemocratic countries. Limiting discretion to protect rights is what the law is supposed to do, it is why the law matters.

David Schultz is a professor at Hamline University School of Business, where he teaches classes on privatization and public, private and nonprofit partnerships. He is the editor of the Journal of Public Affairs Education (JPAE). Schultz blogs at Schultz’s Take, where this article first appeared.


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Comments (8)

  1. Submitted by Greg Kapphahn on 08/06/2013 - 09:42 am.

    We Can’t Afford to Allow This Level of Secret Surveillance

    to continue just because we believe we can trust those who currently control the levers of power.

    Of course we must remember that these programs were originally set up after September 11, 2001 by the Bush Administration, and were briefly reigned in in his second term. We must also remember that, at that point, our “conservative” friends were COMPLETELY in favor of such surveillance.

    But history (i.e. Sen. Joe McCarthy’s House Committee seeking to stamp out “Unamerican Activities”) and the nature of us humans guarantee that these tools, if left in place, WILL be abused in the future,…

    (and are, even now, probably being abused a good deal more than we’ve been allowed to realize).

    We simply MUST put in place a set of well-defined limits to our government’s invasion of our personal privacy through the routine, extensive gathering of information,…

    since even the most innocuous activities can be twisted and made to seem criminal by those who desire to take down their political or personal enemies,…

    “I have nothing to fear because I have nothing to hide” being the mantra of the dangerously naive and the ignorantly uninformed.

    Furthermore, secrecy in the level and types of surveillance and it’s uses must not be allowed, nor should “star chamber” secret courts staffed by deeply paranoid, safety-above-all-else judges hand selected by the Supreme Court’s chief justice be allowed to make decisions regarding the need to cast aside the constitutional rights of individuals,…

    especially when there is no possibility of appeal or recourse, or even awareness of their unconstitutional activities.

    The founders of our nation would cringe as they watch us dancing away from the broad plain of the representative Democracy they tried to provide us,…

    up to the very edge of the cliff which, should it collapse beneath our feet (which is quite likely) would drop us into an invasive dictatorial government which has claimed for itself the power to destroy the lives of individual citizens as if they were no more significant than fleas being flicked off an elephant’s back with no cause but vague suspicion and no recourse, nor any recompense for the damage done.

    Furthermore, the very idea that these illegal, unconstitutional surveillance programs will keep us perfectly safe is a dangerous illusion. Indeed, if we continue down this path, it’s quite likely that those who control our government will, in order to maintain their power, limit knowledge and information about future attacks in order to preserve the illusion of safety,…

    and delve ever deeper into secret surveillance, up to and including the “disappearing” of citizens whose loved ones will not be able to discover if they’re being held, where they’re being held, what has happened to them, or even whether they’re still alive,…

    and who may face the danger of their own “disappearance” if they make too many inquiries.

    It CAN happen here unless we act now to prevent it.

  2. Submitted by Steve Titterud on 08/06/2013 - 08:17 am.

    “Perhaps we are a safer nation…” ??

    Weighed on any kind of realistic, reasonable set of scales, our government’s threat to its own citizens far outweighs anything the so-called terrorists could dream of, IMO.

    The State Department’s own tracking of international terror incidents shows the number of Americans killed in terror incidents since 2000 (9/11 an exception) are few – less than 30 per year.

    There are more than 10 times as many deaths from ladder accidents !!
    (See for a fascinating summary of deaths by various accidental causes in 2006).
    (See and use its search facility with the term “country reports on terrorism” – pick a year, then drill down at the link “Terrorism Deaths, Injuries, Kidnappings of Private U.S. Citizens” to see for yourself.)

    These facts make it clear and obvious that on a personal level, terrorism is nearly, but not quite, a non-existent threat to your average American. So in order to make the people FEEL that it is an immediate personal threat, in order to justify all the trillions spent and the loss of civil liberties by every single American, it takes a good effort at fear-mongering by our government.

    With the tools and self-appointed powers currently in the executive, a kind of repression is already underway – the repression that fear engenders. And when it comes to national security, fear is the specialty of the Obama administration no less than that gang of George W. Bush, Dick Cheney, Paul Wolfowitz, John Yoo, Richard Perl, and so on. If you can cow the people into submission, you don’t have to actually overpower them – they do your work for you, out of fear.

    Senator Wyden has warned us that…

    – the secret interpretations placed on the laws passed by Congress
    – in secret courts
    – in secret hearings
    – resulting in secret rulings of law
    – with opposition by any contrary advocate obviated

    …are not at all what they American public think those laws represent, nor what the government is telling the people they mean.

    This is no longer about national security, it is about the power of the state over its people.

  3. Submitted by Steve Rose on 08/06/2013 - 09:30 am.

    Will we ever get over Bush?

    David: Great article; thanks for reminding us of the truths regarding our freedoms and the threats against them. Of course, no article critical of our federal government would be complete without invoking the name Bush, at least once. And, the first commenter seized upon it and shook it like a Rottweiler.

    Thankfully, the Freedom of Information Act allows us a look into the activities of past American Presidents, like FDR. In the early 1940s a group of activists known as the Bergson Group pressured the Roosevelt administration to aid the victims of Hitler’s oppression. The Roosevelt administration resented the pressure and sought relief. Tools used to investigate and harass Bergson, might sound familiar – FBI and IRS. “This man has been in the hair of [Secretary of State] Cordell Hull,” an internal FBI memo noted in 1944. Tactics deployed against Bergson included tapping telephone conversations, opening mail, sifting through trash, and placing informants in Bergson’s office.

    Roosevelt did not likely invent these techniques, nor was he likely the first to deploy them. But we all certainly know they were not created by Bush.

    • Submitted by Steve Titterud on 08/06/2013 - 10:48 am.

      No, they weren’t CREATED by Bush,…

      …they were only first massively applied to all Americans on a broad scale by Bush, at the expense of their civil liberties. No need to narrow suspicion to a single individual, based on specific facts – rather, the government employs a generalized suspicion against all.

      The latest apologist for these illegalities is President Obama. Oh, but you say we can’t really know if these actions are illegal anymore, because we don’t know what claims have been made and what legal rulings on those claims have been made in the secret courts ?? Right.

      In the view of the security apparatchiks, you sure can’t trust the citizens with this information: namely, knowledge of the legal status of their rights, in the eyes of the administration, the security state, and its courts.

      • Submitted by Steve Rose on 08/06/2013 - 11:21 am.

        Five Years In …

        Five years into the Obama Administration, let’s understand that he is only carrying on the policies of previous Presidents that are now his policies. If the President wanted Gitmo closed, he could do it with an executive order. However, it is clear that the closing would only be symbolic, and the policies and tactics would be continued on a different piece of real estate.

        I propose that we take stock of our civil liberties today, and that we work to start taking them back.

  4. Submitted by mark wallek on 08/06/2013 - 10:05 am.

    “American” Democracy?

    Is there a special brand of democracy called “american?” If so, it’s a cheap knockoff of the original concept of plain ole “democracy.” We could call “american democracy” “corptocracy” or “capitoctacy.” The reality is america only appears to be democratic now. We have a full on pay to play system with the facade-we like our facades-of citizen influence. Influence by citizens is still something that can occur, but is now going to have to involve some of the old fashion in your face in the streets violence if substantive change is to be had. For myself, I’m too old, and the young today look to be too invested in the status quo, to lazy or too dependent.

  5. Submitted by Patrick Wells on 08/07/2013 - 07:20 am.

    Goodbye Democracy … Hello ?

    Here are the some problems which reflect a departure from the democracy which Americans had expected in the past:

    1. No prosecutions of the criminal bankers.

    2. Drone killings without war or legal authorization.

    3. Unlimited detention in Gitmo.

    4. Privatization of military and of NSA activity.

    5. Misuse of secrecy. Thousands of private contractors have security clearance levels which allow them access to the private information of American citizens. The fact of this private contractor access and its substance is probably a secret.

    I think that the underlying problem is money and the concentration of power blended with the willful ignorance of the American public. I am sorry to say that I do not think things will change. Welcome to the new world.

  6. Submitted by Rachel Kahler on 08/09/2013 - 09:22 am.

    Yep it’s wrong…but…

    No, I’m not going to apologize for it. I’m going to ask what can be done about it.

    Revolution? Can you really imagine an American population rising up against the government while Dancing with the Stars is on? And, in any case, even the “media” has managed to divide the population into small enough groups that they’d likely simply commit war on each other.

    Elect honest representatives? Ha! Good luck with that one. There are probably 3 in Congress, and they’re all just a little bit nuts, too. Heck, even Rand Paul, the great supporter of personal freedoms, only objects to the actions of the government when it suits his political needs, not necessarily consistently.

    Write letters? You know, I try to communicate to my representatives fairly regularly. No amount of paper (electronic or real) seems to matter.

    Maybe all of the above. Still, without the involvement of many, MANY times the number of people that are actually involved now, all this indignation about the loss of privacy is just bellyaching. We’re not the only first world country with these problems. We’re just the last one to make individual privacy a legal insignificance, thereby subverting the right to freedom from unreasonable search and seizure. After all, if we already know what you’ve done before you’ve done it, there’s no need for a warrant when you actually do it. And most of the public will be ok with that because it just might catch one of them thar terrrrrists.

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