William Galston on the NSA Controversies

Alexander Hamilton is not famous as a foe of robust governmental power, but even he worried about the impact of national security concerns on civil liberties.  In Federalist  No. 8, he observed that

Safety from external danger is the most powerful director of national conduct.  Even the ardent love of liberty will, after a time, give way to its dictates.  The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel [even] nations the most attached to liberty to resort to institutions which have a tendency to destroy their civil and political rights.  To be more safe, they at length become willing to run the risk of being less free.

Hamilton’s argument is at the heart of my reservations about the surveillance state we have built in the wake of 9/11.  I do not doubt the good faith of the presidents who have pushed for these powers, the legislators who have granted them, or the judges who have overseen their use. I am open to the argument that the programs recently revealed do not breach the bounds of existing statutes—although, as Robert Chesney and Ben Wittes have recently pointed out, the executive branch’s expansive interpretation of Section 215 of FISA is at least surprising.  And I have no idea whether the FISA Court’s order to Verizon would survive a 4^th Amendment challenge. My concerns are civic and constitutional in a much broader sense.  On paper, checks and balances are built into the surveillance system.  In practice, it’s not so clear. Members of Congress in possession of the relevant facts were barred from discussing them publicly, and a skeptic might worry that the FISA Court---which almost never turns down surveillance requests---has acted as a rubber-stamp for the executive branch. The driving principle of our constitution is the fear of tyranny. Madisonian institutionalism is designed to prevent dangerous concentrations of power, in part by setting constitutional institutions against one another, in part by allowing the people to see and assess what is being done in their name. I am increasingly skeptical that our surveillance state meets either of these tests. I never thought that George W. Bush had tyrannical tendencies, and I certainly don’t think that Barack Obama does. But the new mechanisms of surveillance are like a weapon that can be used for both benign and malign purposes. To honor our constitution’s anti-tyranny principle, our institutions must be designed to safeguard our liberties even when the holders of public power are determined to override them. It is true that guns don’t kill people; people kill people. It is also true that guns make it easier to kill people. It may be true that as currently staffed and administered, the new institutions of surveillance do not threaten our liberties. It is also true that in the wrong hands, they would make it much easier to do so. While the framing of survey questions on this question affects the results, it is probably the case that a majority of Americans is prepared to accept current policies. But that’s Hamilton’s point: fear can drive us to subordinate liberty to security. Obama is right: there are real tradeoffs here, and we can’t have 100 percent of everything we value. It is time for us to ask ourselves---as a country---whether the balance we’re striking is the right one.  To do that, the people and their representatives must be in possession of the facts---and empowered to discuss them freely.  Our government should stop asking us to sacrifice democratic deliberation on the altar of secrecy.