So many brave Americans have fought and died for our freedom. What would they think of the country we’ve become? Would they lament what some have done with that freedom? Would they still think it was worth their last breath or drop of blood, or would they shed tears for the liberties we gave away without even a shot having to have been fired to take them? Would they weep at the sight of groups like Antifa rioting and destroying property seeking to deny people their freedom of speech? Would those who died in the American Revolution shudder at how many people would forfeit their rights to keep and bear arms, to be free from unwarranted search and seizure for the illusion of safety and security? Would all those hundreds of thousands of Union soldiers cut down in battle throw their hands up dismay at how racially divided we’ve become? What would those who died on foreign soil in WWII think of a Europe, the continent they freed of one form of malignant socialism opt for a more palatable one? How would those who died in the War of 1812 react to football players not honoring the Star Spangled Banner, a song written about the flag some of them literally died to defend? Remember this Memorial Day, those heroes died for more than a piece of land, they died for an idea, an idea that freedom is worth fighting and dying for. They died so that those they left behind could be safe from tyranny and oppression. Let’s not surrender easily what they paid the ultimate price for, that idea of that “shining city on a hill”, of American Exceptionalism.
It started with a bad decision to take the matter of same-sex marriage out of the hands of the voters and into the hands of the courts. Now, without support from the majority of people in Kentucky, they are forced to accept a law and their legislature has been denied even the chance to create legislation that addresses the wants and needs of their constituents. Christians feel persecuted for religious beliefs that are in conflict with the Supreme Court’s edict. The LGBT community is put in an awkward position of appearing to put their rights above those of others. All the bad things that the dissenting Justices wrote in their opinions are coming true. The result is a situation where no one looks good, or wise.
Next was what arguably another bad decision, that of Kim Davis, the county clerk charged with implementing part of the Court’s decision. Being an Evangelical Christian, she feels she does not have the authority to approve marriage licenses for same-sex couples. The fact that the government has approval authority of any marriage, gay or otherwise is in itself questionable. Other than verifying age, legal identity, and current marital status, what is there to approve? (Under the current Supreme Court ruling, marital status should no longer even be an issue, but that is a subject for another day.) She didn’t resign, nor did the take the out that the judge gave her– that she simply not interfere if her deputies signed the documents instead. It seems that given a way to keep her job, yet not lend her stamp of approval to the marriage documents was not sufficient. Her stance is admirable, even brave, but when a judge offers you a face-saving way out, you ought to seriously consider it. Again, her civil disobedience while principled, forgets the fact that she’s a public servant and is not free to choose which policies she supports. Perhaps she’s simply following the example of sanctuary city mayors, or presidents with their pens and phones, so maybe her confusion is understandable.
The judge who locked her up for contempt probably didn’t much consider the optics of sending someone to jail obsessively for having religious views incompatible with the official stance of the government. A fine would seem more in keeping with sentencing norms than outright jail time. It makes her a martyr and so in the end makes the government’s position look unwise, if not outright tyrannical. It pits needlessly one group of Americans against another.
Certainly the choice of bypassing the democratic, albeit slower process in favor of the quicker, easier judicial rout failed to build a sufficiently strong foundation of public support. Putting someone behind bars for expressing deeply held religious beliefs does not do much to support the tolerance argument. It will serve to build up resentment and distrust amongst a segment of the population already suspicious of the Federal government. The results have been predictable, and were predicted by Justices Roberts and Scalia in their dissents. At every turn, a series of poor judgments has snowballed into debacle. Now it will take a Kentucky legislature with the wisdom of Solomon to split this baby in a way that satisfies all parties. The courts, if they have any wisdom, should step back and allow those elected by the people sort out a mess they helped to create.
When I saw the Privacy & Civil Liberty Oversight Board was going to hold a public discussion at the National Constitution Center I was very interested. Our First and Fourth Amendment rights are very much in the news with mass data collection being declared illegal by the Second Circuit Court of Appeals earlier this month, and the PATRIOT is set to expire at the end of the month. When I saw on the agenda that the speakers were almost all law professors, I was a little intimidated, not being a lawyer or a professor. I decided to go anyhow, if only to see what an ordinary person such a myself would or could make of the discussion.
The focus of the discussion was Executive Order E.O. 12333. Very briefly, it is the executive order signed by President Reagan back in 1981 that outlined how the nation’s various intelligence agencies were to operate. It is one of the documents that agencies such as the NSA rely on for guidance on how to operate within the confines of the law. When the NSA collects data, mass or otherwise under the PATRIOT act, E.O. 12333 serves as a primary legal reference.
The panel experts were well versed on the content of E.O. 12333 and possessed an in-depth understanding of constitutional law as it applies to the order. Their knowledge of case-law and the various court decisions that apply to intelligence gathering was extensive. On one level that was good to see– they do the legal research on our behalf and give their professional analysis, an analysis that the Board then uses to form their recommendations to Congress.
On another level, the level of the average citizen of average intelligence, the fact that it does take a Constitutional scholar to really know what E.O. 12333 means, and what the Constitutional issues are is somewhat concerning. We the people like our laws uncomplicated and straightforward. The Fourth Amendment I thought was. So why the apparent gap between the layman and the professional in this case?
I would put forth this explanation: The legal experts have over-complicated the issue. This isn’t meant as a knock on them, they do their jobs very well. They support their analysis with well researched case-law and can cite all the applicable legal precedent. They’re trained to do this because their opponent on the other side of the courtroom is doing the same. The issue of the mass collection of data seems a rather straight-forward one: Is the information such as the metadata from your phone bill readily and publicly available? No, one cannot simply obtain from the phone company a copy their neighbor’s bill; that information is private. It may not exist at all. It must therefore be searched for. Obtaining the metadata from your phone constitutes seizure. The search and seizure of an American citizen’s belongings without a warrant is expressly prohibited in the plain language of the Fourth Amendment . The warrant issued cannot be for all records of everyone, nor can one be issued unless probable cause of a crime exists. Warrants that do not specify where or who is to be searched or seized and why are considered general warrants and are unconstitutional.
The collection of mass data’s relationship to the First Amendment was also explored. It was posited that a public perception that their privacy was being invaded, even if only a perception, could have a “chilling effect” on free speech. As it is impossible to prove a negative, there may be no meaningful way of gauging to what extent if any, mass data collection is having on free speech. Even if alleged, it may be hard if not impossible to prove to a legal standard loss of free expression. An argument for the chilling of freedom of association may be an easier one to be had, if an entire organization were to be caught up in the mass data search dragnet.
Another topic the panel addressed was that of oversight. Who is responsible for ensuring the rules are followed and how? The consensus of the panel was that there are and should be several layers of protection for the public. The agencies themselves have internal accountability. The courts determine the legality of the law and how it is being carried out if and when a violation of law is suspected. Various Congressional committees provide some oversight. The real leverage Congress has is over the purse strings. Periodically, but at least yearly, each agency must sell their product for the next fiscal year. Congress can refuse to appropriate money for a program it does not deem worthy or necessary. Of course, in the case of national defense, this tact may conflict with the President’s power as Commander-in-Chief, as well as the Government’s collective mandate to “provide for the common defense” in the Constitution. It’s worth noting that when in the years between 2009 and 2014 Congress did not pass a budget though the normal appropriations process, they severely hampered their ability to exercise what control they had to influence the NSA’s data collection activities.
The NSA’s data collection activities can help keep us safe if used wisely. These efforts can and must be carried out through purely Constitutional means. Moreover, greater transparency into how the system is working is needed. It is not enough to simply assure the public their rights are not being violated, intelligence agencies must be seen to be operating within the limits of the law. Operational secrecy may be essential, but secrecy when it comes to oversight is worthless as a measure for gaining and keeping the public trust. In the absence of any independent data to go by, the American public will fill in the gaps with their own conclusions, correct or not.