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The key behind all these programs is secrecy, invoked in the name of national security. We’re only beginning to understand the scope of NSA skullduggery because of a leaker who fled the country and is wanted back home under the Espionage Act, an odious Woodrow Wilson–era law that the Obama administration has used to unprecedented effect on journalists and leakers. The White House says with a straight face that the president “welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens” even while he’s attempting to imprison those who started the conversation in the first place.
The secrecy has gotten so out of control that the very legal reasoning the government relies on in its snooping has been persistently and successfully shielded from public view, despite the best efforts of civil libertarians such as Sen. Wyden and Rep. Justin Amash (R-Mich.). To sum up: The executive branch is furiously trying to prevent citizens from knowing that they can be spied on, from knowing whether they are being spied on, and from knowing what legal theory the feds are using in the conduct of their spying. There can be no co-equal branches of government in this scenario. The legislature cannot be responsive to informed public opinion when the public is prevented from having one.
When the constitutional balance goes so far out of whack, democratic legitimacy is not far behind. As the press critic Jay Rosen put it in August, “Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?” The answer for more than a decade now has been grim.
That is finally beginning to change. In July Amash came within an eyelash of having the House of Representatives vote to defund the NSA program that Snowden exposed. That same month, the Pew Research Center found that, for the first time in its nine years of polling the question, more Americans feared intrusion on their civil liberties than feared a terrorist attack. The more Americans find out about their lawless executive branch, the more they rebel.
When government is lying to you about the constitutional rights it routinely violates, it’s time to change your habits of mind. No more blank checks. No more “trust, but verify.” No more hoping for the best. Be paranoid.