I was saddened today to hear that the Senate passed a bill that both gave a long-term extension to the Bush wiretapping program, but also extended immunity to the communications companies that handed over records. I think that Chris Dodd put it well when he said the incident would be looked back upon as a test whether the United States operates under “The rule of law, or the rule of men.”
Right now, I’m reading an excellent book by Anthony Lewis on the history of the First Amendment to the U.S. Constitution, and this situation seems like it would have been a no-brainer to include in the text (part of it may be; I’m not finished with the book yet). The book is titled Freedom for the Thought That We Hate, and it mostly traces the shifting judicial interpretations of the Amendment since its inception. One theme that has been abundantly clear is that, in times of fear, rights constrict, regardless of the reality of the thing feared. There’s a lot of shifting ground to cover, from the various sedition and loyalty acts (until now, I didn’t know that Woodrow Wilson was such a bastard) to the expansion of the rights to the press, to the idea of privacy as a right. That’s where this situation comes in, I think. Privacy was never explicitly written into the Constitution, but over the last hundred years, it has wedged its way in through the First Amendment. How does the freedom of speech necessarily evolve into a right to privacy? The clearest link is that we have a right to think and believe what we wish. One can choose to share that in a non-public manner (such as a private conversation), and neither the press nor the government really has a right to expose private opinions, especially if such an opinion could cause personal harm. Lacking that privacy, the marketplace of ideas and expression suffers. If you fear privately express a radical idea, or argue for a type of change that current powers don’t agree with, then progress can’t occur. In a society such as ours, that encourages discourse and the marketplace of ideas, many radical or unusual opinions are not kept quiet; that how ideas are stirred together to make new ones. Just because you think that someone’s ideas are 99% crazy doesn’t mean you won’t think that last 1% has some merit and incorporate it into your own. Society needs unpopular ideas; that’s how we make popular ones.
The United States, however, has a very distinct historical pattern of trampling on ideas not shared by the people in power. Usually it comes in a xenophobic frenzy about foreign influences or threats. The FISA bill is just such a trampling. The wiretapping itself is bad enough, but in the past there was at least a judicial review beforehand. Even if the secret spy court was a rubber-stamp body, there was a check for someone to say, “No, that won’t do.” Now even that tiny speed bump is in the process of being removed. What was it that Kissinger said? “The illegal we do immediately; the unconstitutional takes a bit longer.” In this situation, it is far easier to do something “legal” and hope no one brings suit on Constitutional grounds later. Even though the law only allows for the examination of non-citizen calls, does anyone really expect that to be a realistic limitation? The retroactive immunity is also a sham. While the phone companies may have acted “in good faith” as far as the government is concerned, they certainly did not act in such faith to their customers, and should very much be open to suit for not living up to the consumer agreements.
The point, I think, is that fear creates opportunity for unscrupulous people to grab for power and stifle the rights of others. Fear leads to people not thinking about the decisions they make, and what concessions they make to have an air of safety are hard to get back when the fear subsides. Our courts have done a decent job of preventing permanent reversals of freedoms, but that’s something that happens over history. I’m living with it now. I want to live in a society where I can speak my mind openly, even if I embrace an idea or opinion that horrifies the mainstream. Where I don’t have to worry an oppressor listening to my private conversations. It’s not even that, in the end. I once had a friend defend such a policy by saying that good people wouldn’t have to fear, or even ones that just kept controversial ideas to themselves. That doesn’t work, though. Even if no “evidence” could be brought to bear against me, can the same be said for my employer? My doctor? My child-care? Are all those people “perfect”, or can their faults be used to make them bring pressure on me? The whole idea is that, with the idea of thoughtcrime, you don’t even have to do anything wrong to be a victim. My advice? Don’t buy into the fear. Sure, things happen. There are scary-ass people and things out in the world. Isn’t it important to talk about them, though? Isn’t it important to be able to hold your head high and say, “I have a better idea”? People control through fear and intimidation. Terrorists use it to influence, and those who would clamp down on society to prevent terror often manipulate fear to their own ends. I don’t think that fear is that scary. What scares me is not being able to say what I want about it.