It has from time to time been suggested that the ancillary documents grounding the Constitution need not be taken as valid sources of law in American courts. This, like the excuse that "privacy" or "dignity" aren't in the primary document, is merely another facetious argument against democratic sovereignty by those who prefer themselves to possess the true dignity, and thus to deserve all possible emoluments. It is equity that enjoins lawyers to read "privacy" and "dignity" into the Constitution, and to do so via the Declaration and Preamble, without which they could arrive through the primary document only as an intellectual awareness of a cultural and legal tradition, one that need not have been presumed to pass through by anything other than assent. Only when seen through the accompanying documents can we acknowledge that they came legally and peremptorily in a manner that no assent of any group can assail. Well, except a cabal of Republicans bent on power and control. And a public by and large oblivious of law and its philosophy, one that lawyers, too, could care less about -- or so events make it appear.
Lawyers are chary of equity: their clients are, by and large, from the wealthy classes, those who can pay for these expensive services. The same people who by and large care about themselves willfully at the expense of all others. Equity came into being around 1150 C. E. in an effort to offer the lowly a leg up in fighting off depredations from above. Business interests, even some occasional governmental interests, are chary of equity, for those in power wish to maintain and increase it, almost always at the expense of the lower classes. Equity has been in bad odor precisely where it was to have been the most highly prized.
Equity jurisdiction, or rather the lack thereof, and Republican efforts to create an all-powerful aristocracy of economic power, come together in recent matters that illustrate just how serious the decades-long trends have really become. Whistle-blowers, who of all people must rely on equitable jurisdiction when they come before magistrates, are having a very hard go of it under President Obama. Next are those leaking documents and/or publishing them. Curious events unravel. The United States has gone after easy targets with all the firepower they can bring to bear. Bradley Manning was in an adverse posture for being in the military. Wiki Leaks founder Julian Assange, a mere foreign gadfly, was another easy target, or so it was thought before he proved otherwise.
And now, Glenn Greenwald? Oh, no problem, he has nothing to worry about, nothing whatever. Really. Maybe they're afraid of him? I'd gladly have him defending me in court! But still the question: why the sudden change of course? Because there is no consistency here except a universal desire to hold everything secretive and beyond accountability, and to throw the weight of law against the easiest targets and thus make of them examples. Of what, we should never have known but for the courage of those few who tell us what is really going on.
Edward Snowden wants the American public to decide how far these programs can or should go. Which highlights a few ironies. Americans can hardly hope to know whether, or to what extent, they should demand something from Congress when, for being entirely ignorant, they don't know what to ask. A majority of Congress could well ask the same, and doubtless will before long. Which is the problem in the first place, and the core evidence that transparency has failed us for failing to exist. Not to mention the fact that only two U. S. Senators quickly and publicly acknowledged the matter of transparency, even calling into question the usefulness of the programs. Frankly, it sounds rather as if the power-hungry set is protecting their military and security wonks, and apparently take what they say at face value (a pretty silly thing to do, really).
Seemingly liberal-sounding authorities with official or legal experience (Jeffrey Toobin shows his darker stripes) have been condemning Snowden with nary a mention of the core issues -- which properly begin with the absence of transparency or accountability. Now the good politicians claim that because they are the representatives of the people, and because they allowed these programs, and because their special committees were likewise favorable, well, end of discussion. Trust us, they say. And when we don't, it is we who don't "get it".
The core issues of privacy infringement stem originally from metadata scans. In law and in theory, a judge must consent for NSA folks to dig deeper, beyond the meta-level. When program backers scream loudly that no one reads these emails or phone calls, they really only mean that the metadata is not supposed to be opened. The privacy issues become real when concerns over putative citizen malfeasance are improper, when judges rubber-stamp requests to go beyond the metadata, and when innocent people are exposed to authorities who act with impunity and they are immune from punishment for the harms they mistakenly wreak are held immune -- if only on account of the desire for all to remain a big secret. Justice is nowhere a part of the rationale.
Law-and-order enthusiasts, including Obama, are to my mind brutally naive to believe that the NSA folks are capable only of honesty and integrity in chasing down only those leads they are entitled to. The current record of FISA judges is abysmal and no one but an agenda-driven fundamentalist could say otherwise. With that as the "example" set from the top level of accountability, you can guess the rest. But exactly why should anyone suppose that protected gooks would go to a judge when they could do anything with complete impunity without one? In golf one expects every professional to cough up errors even when no one watches. The NSA is hardly a golf course, and over-paid and questionably-educated folks manning the computers are hardly going to self-report without external incentives. PGA golfers they are not.
The NSA operating (v. stated) rules appear very different on listening to Snowden; only dilettantes would give a blank check to those with powers bounded only by private decisions, private opinions and private motivations. Congress has been oh, so very idiotic. They gave t he go-ahead to well over a million private self-absorbed jobbers -- kept honest apparently by nothing more than the fear of losing the cushy earnings -- to manage a nation's lifeline of privacy. What is wrong with this picture?
We see what J. Edgar Hoover could accomplish with the threats of exposure hanging over anyone who would challenge him. With the NSA programs we have developed a billion Hoovers and all we need is for unsavory politicians (or others) to make contact with unsavory geeks manning the computers. This is entirely untenable absent strict oversight. This is what Edward Snowden is worried about. It is what every American must become worried about.
On being polled whether they feared the NSA policies now that the Snowden leaks were out, the majority of Americans were undisturbed and seemingly unconcerned. President Obama publicly declares the selfsame concern raised by the very man he will hunt to the ends of the earth in a passionate tribute to power and tidiness. We should, he says, have a public discussion -- a recall election for Scott Walker?
I, for one, am worried. I am worried for our democracy. I read the remarks of retired Justice Souter with dismay. He, too, sees these danger signs; he, too, is worried. In a piece called "Pervasive Civic Ignorance in U. S. Could Bring Dictatorship" he gave me topic and talking points. Souter came to the Court a Republican from New Hampshire, under George Herbert Walker Bush. He turned gradually into a quasi-liberal. One must wonder why. Could it be that he learned that the Republican war on liberals was focused at the Supreme Court? Could it be that he concluded over time that the Republican agenda had nothing whatever in common with norms of jurisprudential conduct? Could he have seen an aristocratic movement and drawn the logical conclusion -- and found himself revolted?
Failure of the sovereign to hold Congress and President accountable left Republicans to successfully mount their attack on democratic values in favor of an agenda favoring the wealthy, those believing themselves born to rule. As of Citizens United the aristocratic agenda is all but complete. We need only broker another crisis, suggested Souter. Public ignorance, partly endemic and partly the result of withholding information from them, has given rise to the most logical precursors to dictatorship: a powerful military and a self-absorbed aristocratic clique. Add a spark to that tinder, and Poof! No more democracy.
Part of our loss in equity -- the true voice of the law -- concerns the obscene notion that only written law, and only a literal interpretation of it, can have sway in courts. So if and when Snowden is hauled in to pay for his gift to democracy, he will be charged under the Espionage Act, a law that presupposes a verifiable threat to the nation's security. There will be no mention that there was in fact no such threat -- rather there will be imagined reasons to the contrary; the data considered "secret" was actually nothing that should have been kept from every American from the very beginning of these nebulous and questionable programs. Worse, a culture of secrecy rivaling Enron and increasingly jealous of prerogative wants everything coming across the transom to be "classified", meaning to all intents and purposes that banal trivialities can be now be brought to light under the act governing treasonous conduct. All of this because the equity that compels us to use what God gave us between the ears has been replaced by the literal letter of the law -- just as Republicans like it.
This is how far from decency and dignity we have come. The authorities, scandalized at their own cupidity, scapegoat whoever looks good for the rap. 'Tis a dangerous thing to make light of governmental insipidity. That is truly the treasonable offense. Maybe we should give teeth to stewardship obligations and throw the authorities, not the whistle-blowers, into prison. I could sleep very soundly at night with that kind of equity.
Of the two Senators calling the NSA into question, one was Paul Rand (even some Republican pundits like Bill O'Reilly are taking a second look). It really isn't a huge surprise that Tea Partiers would have a mind to question threats to privacy. To echo another Republican who proved ready to commit to progressive concerns: 'He may be a loose canon, but he's Our loose canon' . One more loose canon is Edward Snowden himself, a bird of a feather, apparently, a man who contributed to Rand Paul's senatorial campaign. There may be hope for Republicans after all, but to obtain it on one small slice of one wedge issue isn't exactly a clarion call.
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