The Snowden Muddle

F. Scott Fitzgerald said that the test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.  A lot of us are trying to meet that test in the case of the Snowden leaks and their ongoing repercussions.  I for one will confess that from the moment the leaks first surfaced, my ideas – far from first-rate — have been a bit of a muddle, and I suspect that muddle is widely shared regardless of one’s position on the political spectrum.

This muddle stems from a conflict between two reactions: on one hand, revulsion at the naiveté, gullibility, and self-righteousness of Snowden himself, at the stupidity of a system that could allow a such a self-aggrandizing drone to come into possession of highly sensitive information, and at the predictably awful consequences of that information’s dissemination — the degrading of America’s credibility and influence in the world, the compromising of U.S. intelligence capabilities, the likely further balkanization of the internet, etc.

On the other hand, there is an equally strong revulsion at the idea that a bunch of faceless functionaries at the NSA (and elsewhere) could presume, on whatever premise, to invade the privacy of millions of people (including the leaders of allied nations), to collect mountains of personal meta-data for later perusal at whim, to undermine private encryption methods to make us more vulnerable to this prying, to bend private companies to these dubious purposes, and to resort to secret courts for blessing of all this – in short, to personify the fascistic tendencies that our national values supposedly abhor, and that our Constitution prohibits.  Much as we might disapprove of the messenger and his methods, the message is of huge significance.

Putting this in political terms, the Snowden case catches liberals between their belief in the good works and trustworthiness of big technology and big government, and their belief in the sanctity of privacy and individual choice.   The case catches conservatives between their belief in a strong national defense (which includes espionage) and a powerful executive branch, and their belief in a laissez-faire marketplace, diminished government intervention in private affairs, and an originalist view of the Constitution.  (Similar quandaries are raised (or should be) for both factions by, say, the Obama Administration’s extensive use of Predator drones, the recent Texas legislation restricting abortions, or the ongoing prosecutions at Guantanamo.)

Conservatives and liberals alike can agree that Snowden is at best a product of profoundly stupid government subcontracting, and at worst a traitor, without necessarily agreeing on whether public awareness of the NSA’s activities is a bad thing, or what if anything to do about them.  Would that we could put the genie of that awareness back in the bottle, but we can’t, and had Snowden and The Guardian not colluded to out the NSA, the fact of this sort of activity would have emerged eventually by some other means.  The very technology that enables this sort of wholesale snooping also eliminates the possibility of wholesale secrecy.

Now that we know at least a bit of what is going on, it seems incumbent on us as citizens to insist that the NSA, CIA, etc. be accountable for their actions under the rule of law, including Constitutional law. “Trust us” is not enough.  The Constitution’s prohibition of unreasonable searches and seizures is unequivocal, and it has yet to be convincingly shown why the NSA’s global dragnet techniques are reasonable.

To properly inform the debate may require further disclosure of what our government has been up to, and the question will then be, disclosure to whom? Perhaps there is a workable proxy for the voting public in this regard, but recent performance of our representatives in Congress suggests that they are not it.  Few of us truly understand the internet itself and, with all due respect to Diane Feinstein, that includes most elected officials.  Should we accept the decisions of the Foreign Intelligence Surveillance Court, which gives license to much of the NSA’s internet-trolling activities?  Hard to tell, since its deliberations and rulings are secret.  What are the limits of what is possible in terms of internet surveillance, and how does one define the boundaries, within those limits, of what is needed to save lives from future terrorism?  The questions require not just wise jurists, but first-rate hackers to answer.   Politicians fall into neither category.

As we try to find a way out of this muddle, we must not lose sight of the forest of Constitutional concerns in the trees of nationalism.  The decades-old legislation that gave rise to this system of secret, parallel government needs to be reexamined, and the age-old tradeoff between security and liberty needs to be openly debated in the light of 21st century technology, informed by people who truly understand both.

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