We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

The nice men in periwigs who came up with the Fourth Amendment were recklessly naive to imagine that branches of a government, each of whose power is enhanced when the power of the other branches grows, would serve to check one another. The idea of a judiciary that would police the executive as an arm of a self-correcting tripartite government was worse than naive.

- Ilana Mercer

41 comments to Samizdata quote of the day

  • Paul Marks

    I have held my silence on several posts of this type, but I will comment on this post.

    It is true that the judges (appointed by Presidents) have proved to be a weak reed.

    However, there are many Senators and members of the House who are sincerely committed to civil liberties. Senator Rand Paul being an obvious example.

    Running off to Putin and the FSB on the grounds that “Congress will not check the Executive” only makes sense if you have first put your case to the Senators and members of Congress (as a whistleblower) otherwise what such a person is really saying is “I have ESP – I know Congress will do nothing without having to ask them”.

    I am told I should believe Mr Edward Snowden – in spite of his choice of friends (Channel Four, the New York Times, the Guardian, the People’s Republic of China, Mr Putin and he FSB……) O.K. then – but believe Mr Snowden about what?

    I have been waiting for about a year now for Mr Snowden to produce a single example of an American citizen who had his e.mails read (not counted – READ) without a warrant. Come on Edward what are you waiting for? You have made speech after speech – now give us a freaking name. One American citizen who has had his e.mails read without a warrant.

    Also it is not clear that Mr Snowden is really an enemy of Mr Obama at all.

    Why did Mr Snowden wait to launch his attacks on the NSA (and so on) till AFTER the election?

    That meant that the President would not be punished in anyway electorally.

    And why did the New York Times (which lives by leaks ORDERED by the Obama Administration) publish Mr Snowden’s attacks?

    If Mr Obama had really been angry with Mr Snowden the New York Times would have declared him (Mr Snowden) a nonperson – after all otherwise the OFFICIALLY ORDERED leaks from the Obama Administration would dry up and the New York Times (which depends on them) would go bankrupt.

    So (I say again) are Mr Obama and Mr Snowden really enemies.

    Or is Mr Obama privately rather pleased by the American (and British) intelligence community being turned into whipping boys.

    I repeat……

    If there are American citizens who have had their e.mails read without a warrant then this is wrong and the NSA people responsible must be PUNISHED.

    So Edward – let us have some names please.

  • Paul Marks

    Practical suggestions.

    People do not seem to like elected judges – for various reasons.

    So let there be randomly selected juries (at least one citizen of each State – 50 is not large by Classical standards of a jury) and let Mr Snowden (or anyone else) put their case before such juries on each Constitutional matter.

    Surely a randomly selected jury (of Citizens of the various States) is acceptable?

    Does it have to be Mr Putin and the New York Times?

    By they way – if such a jury system were adopted I see no point in having a Supreme Court (of appointed judges) at all.

  • Rob

    Naive maybe, but it worked for an awful long time. Compare with France – two (three?) revolutions, five republics, two empires. Plus a bloody civil war.

    By European standards the US constitution has been a magnificent triumph.

  • To be honest Paul, your take on the Snowden affair makes me think I preferred it when you did indeed hold your silence. You think Snowden has made an unwise choice of ‘friends’ as opposed to trusting in what I see as a demonstrably corrupt system that would be vastly more likely to just smother his message than reform itself if he had given them the opportunity to do so by doing what you suggest (which he thankfully did not)… I am starting to think you are the one who has chosen some unfortunate ‘friends’ by aligning yourself with the US government on this.

    And you need to spend more time on Google to understand the nature of meta-data and how tracking that indiscriminately is a Very Bad Thing. And an even worse thing is that they intentionally weakened the fundamental security infrastructure of the internet itself: for that alone the NSA and GCHQ need to be bulldozed to the ground and the earth salted where they once stood.

    Moreover frankly even if the NSA and CGHQ never tracked any American’s meta-data and just contented themselves with spying wholesale on the remaining 94% of the world, that would simply make the US and the UK national espionage establishments something that the rest of the world need to regard as a serious threat, along with China of course, and treated accordingly.

  • I don’t know about Snowden or his motives, but the Russians are playing him – and the Americans – like a fiddle.

  • So what Tim, it is not about Snowden, it is about what he did and how that has forced the NSA and CGHQ unwilling into the spotlight. The clownish Putin can prance and posture all he likes for all I care. He is a bit part player in all this.

  • Just to add a bit more fuel to the fire.

    Personally and as much as I disagree with Paul on this, I’d rather he did not hold his silence. Even if he is wrong – which I think he is – his specific points are well taken, and need to be considered. To put it another way, I think that what Snowden did was overall A Good Thing regardless of his real motives. But at the same time, his motives are still important and need to be revealed for all to see. This is not a black-and-white issue, far from it. I humbly suggest that we not throw out babies with water and all that.

  • Greg

    Perry, echoing Alisa, one “baby” we might want to keep is Paul’s question: “Mr. Snowden, … give us a freaking name”. Does Paul’s question matter in your view?

    Next, if you’re just as concerned about the meta data as you are about the data or maybe more so, then why limit this to the internet? Other observational data (video feeds, cops on street corners, neighbors phoning in your suspicious behavior) has similar potential for abuse, or at the least is not the government’s business (or Google’s!).

    [aside: I assume you'd agree that it's not just the US/Sov/Russian/Chicomm types that do this stuff, not is it just governments. I'll bet if we knew the full extent of such data collection and analysis, we'd see that what the private sector does is vastly larger and more pervasive than any government or maybe even compared with all governments combined. Profit motives are strong!]

    My cell phone tells shopkeepers which aisles I walk down, how long I linger at a given sales display, etc so that they can better position their products for maximum sales. And of course there are many more uses of such tracking data, some not so benign (even this one is kind of creepy, like having someone follow you around with a clipboard).

    So, let’s say you’re against anyone collecting any of this observational data for any reason…what do you suggest be done to prevent it? A ban? Who decides and how? How is it enforced? Hate to say it (really!), but that almost sounds like a legitimate regulatory role for government. Except I don’t trust them to even build a road without kickbacks, so I don’t trust the little imps for anything else! Anyone have a social pressure-based or market-based solution?

    Maybe education via word of mouth, such as “turn off your cell phone before doing X if you don’t want to be tracked”. Some people considering committing a crime or sin, probably already think of this, but my goal would be to get the idea applied to a much wider range of human activity. Spread such info so widely that even the “low info voters” are aware.

    Not sure what to do about the video cameras (legitimate uses such as crime deterrence/prosecution in banks and convenience stores)…30 day limit on permanent storage of the data and the data may only be examined if a crime is committed? No transmission of the data to third parties unless it’s directly related to the crime monitoring function.

    You get the idea: how do we develop a set of principles by which such information may be collected, analyzed, and used? The answer would seem to turn on changing notions of an “expectation of privacy” we each have. We already expect to be filmed and tracked whenever we leave our homes…maybe we should have had this vote 20 years ago when our privacy expectations were stronger?

    You all likely have more and better ideas…

  • Perry, echoing Alisa, one “baby” we might want to keep is Paul’s question: “Mr. Snowden, … give us a freaking name”. Does Paul’s question matter in your view?

    No it does not matter because the question misunderstands the nature of what this is about.

    I am perfectly happy for the NSA or CGHQ to monitor the phone calls of Mohammed Saide the Shopkeeper if his associates at the mosque in Boston/Bristol/Buffalo/Birmingham are known Al Qaeda fundraisers (for example). That is directed targeted intelligence gathering of the kind I am perfectly happy to see my tax money spent on. And indeed Edward Snowden has been rather good about NOT revealing that kind of information.

    What is *not* acceptable is monitoring the meta-data of phone calls and web browsing habits of everyone in Boston/Bristol/Buffalo/Birmingham and then justifying that because “we have to keep tabs on Mohammed Saide the Shopkeeper”.

    Bullshit.

    That is why Paul’s question indicates he does not understand the issue here at all.

  • I absolutely agree with Perry on this: that was one question that I also found irrelevant, and frankly not very important. The important questions of Paul’s part, IMO, are the ones having to do with Snowden’s motives. They are still irrelevant to the overall issue of snooping etc., but as with everything that anyone does, motives are important and should be considered in the overall scheme of things.

  • West

    Well, it worked fairly well for 200 years.

  • Lost in Kentucky

    Well, it worked fairly well for 200 years.

    As long as you skip over the Civil War and Jim Crow, yeah, worked great ;-)

  • Greg

    Perry, regarding “Mohammed Saide the Shopkeeper if his associates at the mosque in Boston/Bristol/Buffalo/Birmingham are known Al Qaeda”.

    Let’s say we are concerned that we have not identified all of the “Saides”, their associates, or the cities (countries) they are in. If analyzing metadata, en masse, can lead us to the bad guys (by “bad guys” I have in mind those whose goal it is to eliminate Boston/Brisol/Buffalo/Birmingham, to which you can add just about any populate, non-Muslim holy site), are you ok with that? Or are the cops limited to old fashioned stake-outs and physical wiretaps of “Saide’s” premises? Something in between? What is your view of the proper balance between liberty and smoking craters with 5 million dead?

    If the NSA types are allowed to monitor “Saide” and his associates, what about their associates? Where’s your cut-off (since we’re all just six levels removed from Kevin Bacon, right!)?

    Regarding “…Snowden has been rather good about NOT revealing that kind of information”, I think it’s hard to say what harm Snowden’s revelations have done to even the, in your view, legitimate functions of NSA and its allies. The revelations have likely harmed some functions, and there’s no shortage of opinion about the likely good effects of this, but it’s less clear to me what the price of this has been and will be. And if either of our governments can still keep any secrets, it’s possible we’ll not know this price for quite some time.

  • jerry

    Just a couple of items –

    ‘My cell phone tells shopkeepers which aisles I walk down, how long I linger at a given sales display, etc so that they can better position their products for maximum sales …………’
    And as long as you don’t damage/destroy/steal something – who cares. The owners can’t put you in prison !! Government CAN lock you up whether you’re guilty or not – at least to start with.

    ‘ now give us a freaking name. One American citizen who has had his e.mails read without a warrant.’

    How would you ever know ?? How could you ( or anyone else ) EVER prove it was read ( or not read ) ‘illegally’ ?? How would Snowden know unless he personally did it. If there is/was nothing incriminating or prosecutable in the email(s), nothing happens. On the other hand if there were something indicating illegal activity of almost any kind that could led to an arrest etc. BELIEVE IT, there will be a warrant ! You will NEVER know or be able to prove when the warrant was issued.

    The Founding Fathers were, IMHO, honorable,intelligent and honest. If there was any naivety, it was believing that future generations would be of the same character.

  • 5 million dead, Greg? The only instances known to me where the numbers of victims have ever reached numbers of that magnitude were when governments butchered their own citizens – which is to me a point in favor of Snowden, not against him.

  • Perry,

    To be honest Paul, your take on the Snowden affair makes me think I preferred it when you did indeed hold your silence. You think Snowden has made an unwise choice of ‘friends’ as opposed to trusting in what I see as a demonstrably corrupt system that would be vastly more likely to just smother his message than reform itself if he had given them the opportunity to do so by doing what you suggest (which he thankfully did not)… I am starting to think you are the one who has chosen some unfortunate ‘friends’ by aligning yourself with the US government on this.

    The problem is that we really have very little that is concrete from Snowden. His first release was about PRISM, which is really just a mechanism for managing FISA requests to the likes of Google and Apple. In other words, automating a legal process. Greenwald has added his own “The NSA can get to anywhere” but there’s none of that in the PRISM documents, nor has be produced any evidence that this is true.

    His subsequent leaks have been things like “CIA spying on their agents in Pakistan to make sure they are who they say they are”, which is pretty much the job of the CIA, and if I was an American citizen I’d consider as traitorous.

    There have been claims about Linus Torvalds being approached by the NSA to put backdoors into Linux which he subsequently said was a joke, that no-one has ever approached him (because he knows damn well that it would stick out). There are claims being made about Windows maybe adding backdoors, but that assumes that no-one is monitoring the traffic on their routers.

    That’s not to say they aren’t doing some nefarious activities, but this whole circus around the NSA has no evidence at all.

  • are you ok with that?

    Nope, because it never stops there. If they can do pattern matching like that for Al Qaeda, they can also do it for NRA members or Tea Party or UKIP supporters.

    Or are the cops limited to old fashioned stake-outs and physical wiretaps of “Saide’s” premises?

    Ideally yes. Unless there is target, allowing society wide fishing expeditions is behaviour suitable for places like East Germany or Cuba.

    I think it’s hard to say what harm Snowden’s revelations have done…

    It is my sincere hope that his revelations have done an immense amount of harm, hopefully irrecoverably so ;-)

    The clear and present danger is the one coming from Cheltenham and Fort Meade, that is the one I am more worried about at this point. I am all for opposing the Islamic nutters but the notion that we therefore have to trust our own states with panoptic surveillance capabilities to do that is not just absurd, it is tantamount to an invitation to build the infrastructure of tyranny that the Stasi could only dream about.

    There will alway be Bad People for states to deal with, but one only has to look at history to know that the biggest threats to health, wealth and liberty all too often comes from one’s own government.

    The Founding Fathers were, IMHO, honorable,intelligent and honest. If there was any naivety, it was believing that future generations would be of the same character.

    For the most part I agree.

  • Greg

    Alisa, sorry if my reference to “5 million dead” was obscure, but I was referring to the possible outcome of a well placed nuke. And I exaggerated a little, maybe more like 500,000 or 1 million!

  • Myno

    Messr. Marks,

    Even if there were not a single US Citizen who had had his or her emails scanned, still there is the cultural response to the perceived threat of that capability, purportedly now held in check (but for how long?). Friends report to me, from parts of the US that had culturally evinced avid political argumentation, that post-Snowden, such discourse has now effectively vanished. It may still be that we bandy these issues back and forth on narrowcasting sites, but the idle talk that once filled the coffee and breakfast houses of the nation has been silenced. And it is hard to imagine how this would not be interpreted as a “good thing” by the PTB. Baby steps… lead to seven league boots. A chilling progression indeed.

    On another note, the only way anti-surveillance notions will gain traction with the populous, is by meeting head-on, the claim that such surveillance has and will continue to “save lives”. I do not doubt that the NSA programs have “saved lives”. We, as a culture, must be willing to accept uncertain losses of life, to avoid certain losses of liberty. That is the rude equation we must face, and the sales hurdle to overcome. How on earth do we sell THAT to the lumpen voters? Paying prices and counting costs…

  • Sure, Greg.

    Still, I think that my point stands regardless. As Perry alluded, I see nothing preferable in the current US government to those of some of the enemy governments out there, such as the Russian one, for example. While in most regards the US is still a far better place to live than Russia, it is so not thanks to its current government but in spite of it. And, given the “right” circumstances, this government can and will become as oppressive and even murderous as some of our worst enemies.

    Privacy is simply one of the several means of protecting one’s security. This is true with regard to any kind of human threat, including regular criminals and enemy states. Seeing as sometimes one’s own state may become an enemy, there seems to be a good reason to protect one’s privacy from it, just like from any other human threat.

  • rob

    The problem with the State blindly monitoring Ajem Choudary AND Mrs Jones of Acacia Avenue,is that the State soon learns that going after Mrs Jones is so much easier. No Progressive lawyer will ever defend her and her crimes are so obvious: there are ten thousand to choose from.

  • Jacob

    The quest for privacy on the web is a lost cause. If you value your privacy above everything then get off the net and the cell phone. There cannot be privacy on the net.
    The thought that it is possible to forbid or prevent spying on the web, from NSA or anybody else is naive.

  • Cryptosynwave

    The quest for privacy on the web is a lost cause.

    Not true. Technical innovations will ensure that a billion dollars of spying infrastructure can be made obsolete in an afternoon. It is an attrition battle that will have its ups and down but that ultimately one that states will not win.

  • Laird

    I agree 100% with Perry on this. Paul’s question (name an American citizen whose e-mails have been read) is both irrelevant and incorrect. It’s irrelevant because the mere gathering metadata on wholly innocent Americans is completely wrong, whether or not the substance of their conversations is captured. And it’s incorrect because it has already been revealed that certain NSA agents were reading the e-mails of their lovers and rivals; if they were doing so in such (relatively) “innocent” circumstances imagine what they have been doing which has not been revealed. (Clapper has already admitted lying to Congress; why would anyone believe anything the man says now?) And we also now know that the NSA has a special division which “sanitizes” illegally intercepted information and leaks it to local law enforcement agencies for use in ordinary, non-national-security-related, criminal prosecutions, which routinely lie to courts and defendants by disguising its provenance. So it is clear that they are illegally reading the substance of e-mails. What more do you need?

    Beyond all that, thanks to the continued drip of Snowden revelations we now know that the NSA has been listening into the private phone calls of our supposed allies; that it installs bugs in their embassies; that it may have induced RSA in to building a secret “back door” into the world’s principal encryption engine; and that it has an entire division which creates hardware which hacks into private computers and even intercepts computer deliveries to secretly install such devices into servers. The agency is completely rogue; its leaders who conduct such activities and the sycophants in Congress who defend them should be charged with treason. And, as Perry says, the NSA headquarters should be burned to ashes and the ground sewn with salt.

    Paul would have had Snowden take his information to his superiors or to Sen. Rand Paul or others in Congress. Utter nonsense. He did, in fact, take his concerns to superiors within the NSA but was ignored. No one in Congress would have done anything (with the possible exception of Paul, but he is routinely ignored and derided even by his own party). Most of them, including substantially all of the members of the oversight committees, support the NSA even today (some are even trying to expand the NSA’s powers!). Others, such as Sensenbrenner, who have been making a big deal lately about how they were “troubled” by the NSA’s activities, have done nothing for literally years. They claim that saying anything publicly would have been illegal, but they know full well that the “speech and debate” clause in the Constitution provides them absolute protection for anything said on the floor of Congress. They have demonstrated their utter cowardice; going to them would have been a total waste of time. And of course Obama’s claim that Snowden would have been protected by “whistleblower” statutes is an outright lie (like much of what he says); that law specifically does NOT apply to contractors such as Snowden. There was no other avenue for Snowden to have pursued than the one he did.

    And Alisa’s comment that Snowden’s motives matter is also wrong. His motives are irrelevant; what matters is that he brought evidence of our government’s criminality to the attention of the public. (What we do with that information is up to us.) And he did it in a way calculated to do the least possible harm to specific individuals or to provide actionable information to our enemies. But if you really want some insight into his thoughts, motives and actions you should read the lengthy Washington Post article of last week.

    Snowden is a national hero. He should be given the Congressional Medal of Freedom, not hounded across the earth. But of course our predatory government will never do anything so honorable.

  • jdgalt

    The unfortunate thing about the US principle of “separation of powers” is that judges can’t check the power of anyone in the executive branch. This was made clear nearly 200 years ago, when Andrew Jackson was president. Congress enacted the Indian Removal Act, which directed the Army to forcibly remove all “native Americans” from east of the Mississipi River. The Supreme Court found it unconstitutional, whereupon President Jackson said, “John Marshall has made his decision. Now let him enforce it.” He told the army to go ahead with the operation, it did, and nobody was ever punished.

    I may be just about the only American who considers this episode to be an egregious violation of our constitutional form of government, rather than an example of it. I would cure the problem by amending the Constitution to give the Supreme Court the power to remove a president who disobeys one of its orders.

    (Those who support Jackson’s action will tell you that we already have an adequate check on the president’s power, namely Congress’s power to impeach him. But both this case and the Clinton impeachment debacle show that it simply doesn’t work — because when a president is impeached, the Senators simply vote their politics rather than truth or justice.)

  • And Alisa’s comment that Snowden’s motives matter is also wrong. His motives are irrelevant; what matters is that he brought evidence of our government’s criminality to the attention of the public.

    I agree it is irrelevant… that said, that does not mean his motives are not interesting.

  • Julie near Chicago

    Given the recent example of the Chief Justice’s pandering to whatever he was pandering to in allowing the government to claim Penalty! when arguing the first part of the Health Fraud case, and then taking it upon himself to rewrite the damn thing so he could find it constitutional as a TAX — why would anyone think that we could rely upon the Justices to remove a president who disobeys it?

    And if SCOTUS did have that power, it would become in effect the ruling oligarchy.

    Also, jdgalt, I have a question. I wonder why you think you “may be just about the only American who considers this episode to be an egregious violation of our constitutional form of government, rather than an example of it.” Do you mean the governmental spying or Snowden’s action, or both? I’m not sure we Americans generally think this government has acted constitutionally in this matter (not to mention all the other misfeasances). Could you elaborate a bit, please?

  • Julie near Chicago

    Snowden’s motives (and tactics) might be irrelevant to deciding whether what he did was actually in the best interest of the U.S. citizenry (in other words, of the U.S. properly speaking); but that issue and the issue of Snowden’s character are intertwined. People do sometimes do the right (best) thing for the wrong reasons. But:

    Here, and there, and everywhere, people are not only discussing whether the “leaks” were a good thing in themselves; we and they are also discussing whether Snowden is a “hero.” And of course, his intentions and motivation are exactly on point to that question.

    So if people are going to say “Snowden is a hero!” they can’t then turn around and say, in the same discussion, that his intentions are irrelevant.

    . . .

    There’s another thing. What did people think of the NYT when it broke the story about the U.S. government’s using the SWIFT banking database to track Muslim terrorists’ finances? Was that wonderful? Personally I think it stank–publishing the story, that is. It would be like publishing the fact that Britain had broken the ENIGMA messages.

    Frankly, Snowden doesn’t strike me as such a choirboy.

  • Regional

    Snowden is in a jail of his own choosing for life and can never go home.

  • I think Snowden’s actions & motivations are separate things that can be judged on their own merits.

    I suspect his motives were excellent but if he turns out to be a Russian spy, which I really doubt, obviously that changes any assessment of his motives… but it does not lessen the usefulness of his actions

  • Julie near Chicago

    Alisa, thanks for your link above, 1/4 at 1:31, to the XXcommittee piece. I read that article myself yesterday or the day before and was trying to find it again. :>)

  • Julie near Chicago

    Oh, I see. “Intertwined.” I didn’t mean the two issues are inseparable; I meant that they tend to go together in actual conversations, so that people have a tendency to elide them without realizing it. They are certainly distinct issues.

    Several good comments here, that raise a whole crop of food for thought.

  • Jacob

    Cryptosynwave,
    You are right, of course. We, the People, fight back, and are, usually, more resourceful than the NSA and other gov bureaucracies. But it is a tough fight. You can’t sit back and relax, and believe there are some procedural (bureaucratic) regulations that will protect you automatically, that somebody else will protect you.
    Private info sent over the web isn’t private at all. This is a fact.

  • Good points, Julie (and you are welcome).

    To put it as succinctly as I can, there is a difference between shooting the messenger (which is basically what Paul here is doing), and trying to find out who exactly the messenger is, in order to put the message in the correct context. The message itself, most likely, remains unaffected, but the context is still important in the larger scheme of things. I agree with Perry that even if it is proved beyond reasonable doubt that Snowden was a Russian spy, what he did will remain a good thing. But I also agree with Julie that his being A Hero would be put under a question mark.

  • jdgalt

    Also, jdgalt, I have a question. I wonder why you think you “may be just about the only American who considers this episode to be an egregious violation of our constitutional form of government, rather than an example of it.” Do you mean the governmental spying or Snowden’s action, or both? I’m not sure we Americans generally think this government has acted constitutionally in this matter (not to mention all the other misfeasances). Could you elaborate a bit, please?

    Sorry, Julie, I was referring to the story I posted. In other words, most Americans consider it perfectly OK that a president can ignore a Supreme Court order with impunity, so long as Congress doesn’t see fit to impeach and remove him.

    As far as the Snowden situation, I would say 2/3 of Americans support his actions, as I do. It would be different if the data revealed that there is a real terrorist threat and NSA is protecting us from it, but hardly anybody now believes that.

  • PersonFromPorlock

    I’m going to beat the drum again for my admittedly radical proposal, a US constitutional amendment to make ‘misuse of office’ (needs a better definition, I know) a defense for having injured a government actor. If we don’t put an enforcement mechanism against corrupt actors in the hands of people outside of government, any such safeguard will eventually be (or already has been) corrupted itself.

    This is really a variation on self-defense, and like self-defense, a long way from a license for indescriminate violence.

  • Julie near Chicago

    jd, thanks very much for the clarification. You and I must frequent very different echo chambers though…what I get is the sound of bowling balls bouncing off thick, impervious bone as the voices I read *g* keep thundering about unConstitutional Executive Orders; although it is true that I don’t attend the Sinistrophere much, and ignore the MSM just about entirely.

    However, you do not want to get me started on the subject of lack of respect for the Constitution. I notice, for instance, that suddenly the document is ignored by its allegedly staunchest defenders, when it comes to possible Presidential runs by the clearly ineligible.

    As for Snowden, if “the data revealed that there is a real terrorist threat” from which the NSA is protecting us, then his publication of same would almost certainly worsen our position — as did the revelations about SWIFT. And what “anybody believes” is irrelevant to that issue; what people believe does not determine what the facts are.

    For the record, I abhor wholesale, warrantless spying (or private-data collection) on its people by ANY governmental branch or agency and have done so since I was old enough to recognize its existence. The Surveillance State, or Panopticon State, frankly scares the s*** out of me and like most of us, I want it to STOP.

    But that’s no truer now than it was before E.S., whom I completely fail to see as a hero-figure. And his motivations and intent and also his moral clarity and his intelligence when reasoning about the big question of What Is Right do have practical importance for us, the fish in the government’s surveillance net, and for us, whose physical existence our government exists chiefly (as we here insist) to protect.

    Because, if E.S. was by any chance acting purposely, through malice or ignorance or stupidity, to do us harm, then we should indeed refuse him honor — even if his action did backfire and turn out to be for our good. For instance, the false-propaganda experts of the KGB have always counselled that effective propaganda must contain a lot of truth to cover the payload, the lie at its core. Do we then honor the Communist propagandists as truth-tellers because some, or even most, of what they said was true? (See the Bezmenov video on Soviet propaganda, for instance.) Or, was Krushchev a wonderful hero who “should get the Medal of Freedom” because he publicly disclosed Stalin’s crimes?

    How we judge E.S. and how we judge his action are different questions, but they do impinge on one another. And a separate question still is what the long-term results of that action may turn out to be — but those results will to some extentdepend upon not only what he did (which we do not know, exactly: we don’t really know what information he took nor how much he or his mouthpiece Greenwald has divulged), but also why he did it. Because if by some mischance it was done “with malice aforethought,” then it was (whether vaguely or specifically) done with a malicious objective.

    So, questioning E.S.’s moral credibility is not at all a matter of “shooting the messenger.” It’s a matter of using prior experience to try to see whether things are really as they appear on the surface: partly as a matter of justice, and partly to see if there’s a warning sign there.

  • Julie:

    we don’t really know what information he took nor how much he or his mouthpiece Greenwald has divulged

    Indeed, we don’t – and until we do, I see no reason to think that they did divulge anything they shouldn’t have.

  • Julie near Chicago

    Well, I hope you’re right, Alisa. :>)

    And thanks for wading through all that. :>(

  • Laird

    Since you’re all so concerned about Snowden’s motives I commend to you the Washington Post article I linked above (here it is again).

    And whether or not you consider Snowden a “hero” (since you believe that that status depends upon his motives) he certainly has done the US a great service and is a patriot. Justin Raimondo calls for his unconditional pardon, and he says it far better than I ever could.

    Getting back to the original quote which started this thread, I do agree that there would have been an element of naivete on the part of the Founders in believing that the federal government could police itself, had they in fact believed that. But they didn’t, and I think the complaint is overstated. The founders fully understood that the nature of power is to expand, and the internal “checks and balances” system they created is only one part of their power balancing structure. Yes, what we have today is a federal government in which the three supposedly co-equal branches, rather than acting as checks upon one another, effectively collude to expand their collective power. There exists no superior power to keep them in check. But this isn’t entirely (or even principally) the fault of defects in the Constitution.

    The constitutional structure as originally created left the states in a much stronger position vis-à-vis the federal government than they are today. This is entirely consistent with the legal doctrine that the principal (the states) is inherently superior to his agent (the federal government which they created). The Senate was the creature of the states, with all senators directly appointed by them. This (combined with the 10th Amendment, although that was something of an afterthought) was intended to ensure that Congress was subservient to the wishes of its creator, the states. This power was lost in the extremely foolish adoption of the 17th Amendment, which provided for the direct popular election of senators. This converted the states into eunuchs. When coupled with the essentially simultaneous* adoption of the 16th Amendment (permitting the federal government to directly tax the citizens) nearly all leverage held by the states was lost. Since then it has been a continued downward slide.

    Of course, even after the passage of those two unfortunate amendments the states still possessed some leverage over the federal government: they retained the functional power of nullification, in the sense that they could refuse to enforce federal laws with which they disagreed. This inherent state power was recognized from the beginning (examine Jefferson’s Kentucky Resolutions of 1798 for one of the earliest expressions of it), has been explicitly recognized by the Supreme Court, and is today making something of a comeback (witness the recent legalization of marijuana by Colorado and Washington). But that power lost most of its teeth when the federal government (unconstitutionally) created a de facto national police force** in the form of the FBI and the other federal enforcement agencies which followed it. The inevitable result is that today the states have been reduced to de facto agencies of the federal government.

    The point of all this is that the metamorphosis of the federal government into a national government (which is what we now have in all but name) was not the fault of the Founders, or inherent defects in the Constitution, but rather of our own foolishness in amending that seminal instrument in ways which permitted such a change. Only by restoring the states to their previous position of primacy in the federal scheme (in all areas but those specifically delegated to the federal government) can the proper balance be restored.

    * Coincidentally, last year as the centanary of both. 1913 was an especially bad year for the US.

    ** The Constitution contains an express prohibition on the creation of a standing army, because the Founders saw police powers as local functions and they (correctly) viewed standing armies as a necessary precursor to the domestic imposition of tyranny. That’s why we have a posse commitatus statute. The FBI, and the various other federal agencies with functional police powers, were a direct circumvention of that prohibition.

  • Michael Staab

    Many fine comments and observations have been made regarding Snowden. I think that the things revealed, the almost unrestricted manner by which this agency obtains information, is the most valuable thing anyone could have done for the people of this world. I’m not a constitutional scholar, but perhaps those who know better could tell me if the manner by which the NSA gathers information is substantially different than a general warrant? It seems I recall that general warrants are expressly forbidden under U.S. law.
    I also would like to add that the motives by which Snowden have acted are mostly incidental. If our knowledge of how our government has become inimical towards it’s own people is the only thing gained, it seems that is enough. If our government really is that which Snowden portrays, we do have much to fear.