President Obama cares more about the feelings of foreign leaders than he does about the constitutional rights of Americans. In his attempt to stanch the political bleeding from Edwards Snowdens revelations on National Security Agency (NSA) spying, Obama made a definite pledge to cease the spy agencys surveillance of leaders of close friends and allies but appeared to keep all unconstitutional snooping on Americans intact. He masked the latter by vague reforms to be determined later.
This outcome at first might seem surprising, given that Americans vote and foreigners dont. And although Obama will never need to face the American public in another election, his prestige and administrations legacy will be negatively affected if he loses the Senate in the 2014 congressional elections. However, the theory still holds that vested interests usually drive policy unless an overwhelming outcry among Americans ensues. Vested interests usually are fervent because their gain or loss from a particular policy is concentrated, whereas the publics gain or lossusually in taxes but in this case freedomsis smaller and more diffuse.
Even though close allied nations are foreigners, they can be powerful participants in the American political process, especially the rich Germans, who are a valuable trading partner and political ally of the United States in Europe. As a result, of any leader the United States spied upon, the of monitoring Angela Merkels cellphone got the most negative publicity. Yet U.S. snooping on the leaders of nearer neighbors, such as Mexico and Brazil, also brought condemnation.
In contrast, vested interest in the U.S. governmentthe NSA and U.S. security establishment, the bipartisan leadership of congressional intelligence committees, and the secret Foreign Intelligence Surveillance Act Courtdont want the government to give back any surveillance powers, even if they are unconstitutional and downright un-American. In addition to not caring all that much about NSA spying on Americans, the public is divided on the subject. Domestic surveillance by its own spy agency seems fairly unimportant to most Americans, who care much more about recovering from the most severe economic recession since the Great Depression. And after the traumatic 9/11 attacksmade all the more so because before and since, the United States, distant from the centers of world conflict, has had comparatively few instances of terrorismthe public consistently values security over the constitutional rights that make America unique. In fact, many people will tell you that if you arent doing anything wrong, you have nothing to fear from government surveillance. And the thinking often goes, why are the bleeding hearts always so concerned about the rights of suspected terrorists?
But the bleeding hearts know that they are sticking up for everyones rights, not just those of accused terrorists. Americas founders realized that even people accused of heinous crimes, such as terrorism, should have fundamental rights of legal due process. Why? People forget all of the mistakes the government routinely makes in apprehending the right people in terrorism and other investigations. For example, many U.S. prisoners still rotting for years in Guantanamo prison, denuded of their legal rights, are likely not guilty of anything. Surrounding the 1996 Olympic bombing case in Atlanta, government leaks ruined suspect Richard Jewells life, only to find out that anti-choice, abortion clinic bomber Eric Rudolph perpetrated the crime. In the post-9/11 anthrax attacks, government leaks initially fingered the wrong scientist, also wrecking his life, before accusing another one, perhaps also erroneously.
The retreat of the 9/11 attacks into history, Snowden revelations, and the bad publicity surrounding them have pushed Obama into some vague public pledges of reform. Yet outside of canceling spying on powerful leaders of foreign allies, Obama and the bipartisan leadership of the intelligence committees have been reluctant to end the governments collecting of all Americans phone recordseven though evidence has shown that the program has provided very little help in thwarting terrorism-related activities. The powers that be claim that there have been no abuses by NSA, that NSA gets oversight by the Congress and courts, and that private businesses also collect lots of data on the American public (but normally, private businesses just want to sell you something, not lock you up and throw away the key, as the government does).
The abuse is that the entire program is unconstitutional, despite the seeming approval of all three branches of government, because it violates the ban on general search warrants in the Constitution. The government simply cannot have probable cause that all Americans are suspected terrorists. Even requiring private companies to collect and retain the phone records and requiring a court orderfrom a judge who agrees with the government that a person has reasonable, articulable suspicion of being linked to terroristsfor the government to search their content violates the Constitutions stipulation that search warrants must be specific and meet the higher legal standard that probable cause, not just suspicion, must exist that a crime has been committed.
Also, Obama rejected court approval for National Security Letters, FBI subpoenas to compel businesses to turn over their records, which also have been outside the Constitutions requirement for the government to get a judicially approved warrant, based on probable cause. The record has shown that the FBI, without court supervision, has abused this power. Finally, Obama is avoiding necessary court permission to examine the content of emails and phone calls of Americans incidentally intercepted when targeting foreigners abroad.
In all of these instances, the nations founders required judicially approved warrants for the executive branch to search specific items to ensure that one branch of government constrained and oversaw the otherthe hallmark of the American system of checks and balances. That system has broken down after 9/11 and needs to be restored.
To overcome bureaucratic vested interests and revitalize U.S. constitutional checks and balances, however, Americans need to get a lot madder than they are about Bush and Obamas violation of sacred rights.
|Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.|