On the Law and Courts listserv on which political scientists who study law exchange ideas, Professor Chip Carey noted today that the debate over the PRISM domestic spying program should not be framed as privacy versus national security but instead the discussion should be about the rule of law versus authoritarianism. I agree with Carey. Certainly Bush and Obama have gone with the first framing. Obama stated :
"It’s important to understand that you can’t have 100 percent security and then have 100 percent privacy and zero inconvenience -- we’re going to have to make some choices as a society."
There are several things wrong with this statement. 100 % security is not possible, so why start the discussion at that unrealistic point? It reminds me of the Clifford Geertz quote in Interpretation of Cultures when he wrote (I am paraphrasing), "As a completely antiseptic environment cannot be guaranteed in the operation room, we should therefore just conduct surgery in the sewer." In other words, Obama seems to be saying we can't keep everyone 100% safe unless citizens stop asking annoying questions and they should just tolerate anything and everything we say because we know best. I doubt any citizens are demanding 100% security or 100% privacy because citizens are smart enough to that either is attainable. But to set up that equation in which each is 100% creates a zero sum game in which the expansion of one means the erosion of the other, a calulus that is a false dichotomy.
The two things are also not mutually exclusive. The real issue is not whether the government can encroach on your privacy--it is how the invasion of privacy takes place. Democracies gain their vitality and maintain their legitimacy from transparency. Is there a process that is observable by the public or its elected officials? Is there an adversarial checks and balances system in place in which a neutral third party (traditionally the judiciary) scrutinizes the actions of the other two branches? When the President makes a decision with only the consent of only a few select members of Congress who have been secretly briefed but cannot tell others (including other Members of Congress), that is not transparent.
It is also not a transparent process when the federal court that is suppose to scrutinize this behavior is basically rubber stamping the Administration. Obama's claim that federal judges have looked over the NSA's shoulders in the carrying out of these domestic spying operations is not completely true since the Administration has made use of the "military and state secrets privilege" to shield its actions from judicial review. Even with the FISA Court in place, it has not denied an Administration claim in four years and "rarely if ever denies a government request," reports Salon. It seems to be more paper tiger than robust judicial bulwark against Executive excess. So much for that constitutional safeguard.
The real crime in setting up a choice between national security against privacy is that the construction tries to balance two things that are not of equal weight. It reduces democracy's myriad of benefits, protections, and privileges to only one benfit/privilege, privacy. And national security, however important, is only one policy goal of the U.S.
The rule of law, the idea that no official or branch of government can act arbitrarily or unilaterally outside of the law, is a core value and defining principle of American democracy without which all other benefits and privileges cannot exist. While there can be a state with strong national security, there can be no strong democracy without the rule of law. That critical aspect of democracy has been lost in the framing of the domestic spying programs as simply a choice between national security and privacy, the latter which is increasinly treated as optional by both the government and its citizens.