In the mid-1970s we had baseball teams that kept the same players from year to year, three television networks that told us every night what the most important news of the day was, and a life where no one could call us whenever we left the house. There was a beautiful simplicity to life in those days.
We were untethered to smart phones and social media apps. We could actually disappear for a few hours every day and no one would know where we were. If we were considerate, we might make a call from a pay phone and let our loved ones know that we were running late and wouldn’t be home in time for dinner.
Freedom and privacy, the ability to disappear off the radar for a few hours or days whenever we wanted, to ditch work and go to an afternoon baseball game without anyone knowing, that was life in the 1970s. It was something Americans took for granted, but it was also something most Americans expected and valued.
Our schools taught us that such a life wasn’t possible under a communist government, such as the Soviet Union, where secret police units could arbitrarily knock down someone’s door in the middle of the night and drag innocent people into waiting detention vans, never to be seen or heard from again. Where would they take them, we asked our teachers. Oh, to some dungeon in Siberia…if they were lucky.
But, it could happen here, we were told, if we relied solely on the good will of our politicians and leaders. But we had in place a special document that protected us from such tyranny and abuse. It was called the United States Constitution, the blueprint of the greatest system of government ever devised and put on paper.
The first ten amendments of that document, known collectively as the Bill of Rights, guaranteed specific protections of individual liberty and justice and placed restrictions on the powers of government. We had the First Amendment to protect our freedom of speech and assembly and the Fourth Amendment to protect us from unwarranted searches and intrusions into our personal affairs by overzealous police or government officials.
It was a guarantee that a malevolent leader or political group could never turn our country into a police or surveillance state. While human nature was susceptible to corruption and a thirst for power, our Constitution would protect us from a government’s inherent inclination to expand power and control its population.
When the Watergate scandal broke, we heard a lot about the Constitution. It was part of the conversation and was often referred to in helping to navigate through what many called a “Constitutional crisis.” Whether the discussion was about the separation of powers, due process, or executive privilege, the Constituion was front and center during that time. The story of a sitting president ordering the bugging of a political opponent’s campagin headquarters–and then attempting to cover it up afterwards–riveted the entire nation’s attention. Reports of the president utlilizing the CIA, FBI, and IRS to spy on activist organizations added to the drama and sense of crisis.
Today, we don’t hear as much about the Constitution as we did back then. Perhaps because it’s not the right time to talk about it given the ever-expanding scope of our government’s ability to collect personal and private information on ordinary Americans. It almost seems a bit awkward now to talk about the Constitution as we continue to learn about the NSA mass surveillance programs and the apparent lack of oversight–or concern–on how these programs are used to spy on ordinary Americans.
With the leaked documents from Edward Snowden and the more recent WikiLeaks revelations of Vault 7, we now know that our intelligence agencies have the technological ability to eavesdrop and collect all of our phone call and emails, and even monitor us from a television mounted on our living room wall that appears to be turned off.
Our very homes are now wired with all the newest tools of spycraft and surveillance. After having our attention diverted to the war on terror for the past sixteen years, we’ve discovered that we’ve allowed government clerks and bureaucrats into the most private corners of our lives. Even our bedrooms, at least those furnished with Samsung Smart TVs, are not immune from the prying eyes of some contracted worker from Booz Allen Hamilton. Was the Fourth Amendment part of the discussion when these programs were dreamed up? Or are we so far away from that time when the Constitution really meant something to most Americans that it was simply ignored and discarded as unworkable?
How can we take comfort in the protections of the Fourth Amendmant in the face of such an overwhelming and technologically powerful surveillance apparatus? Especially, when these secret surveillance programs are run for the most part by unelected and faceless bureaucrats burrowed deep in the bowels of numerous intelligence agencies.
There is no doubt that when we compare the mood of the country back in the days of Watergate to that of today, there is a significant difference in the importance that lawmakers and news pundits seem to place on the Constitution. Back then, there was a consensus that the Constitution was the law of the land, that it was sacred and recognized as the foundation of our nation’s democracy and freedom.
But today, since 9/11, the country, in many respects, has treated the Constitution more as a hindrance, something that gets in the way of our ability to fight terror and extract confessions from suspected terrorists.
During the George W. Bush administration, John Yoo, Deputy Assistant U.S. Attorney General in the Office of Legal Council, Department of Justice (OLC), wrote legal memos justifying “enhanced interrogation techniques,” warrantless surveillance by the NSA, and a more robust and independent executive branch that could deploy the nation’s military unilaterally without congressional approval.
The memos were seen by many as unconvincing efforts to get around the restrictions and protections laid out in the Constitution. But we see the same kind of contorted legal reasoning today with some suggesting that if we have nothing to hide we shouldn’t mind our government spying on us. After all, we’re told, it’s the only way we can prevent future terrorist attacks. If you want peace, you have to give us your privacy.
That’s the deal we’re being offered. But what about our Constitution? Isn’t that supposed to protect us from our own government spying on us without reason or warrant? There was a time when all Americans would agree with that. But now we’re living in times when great legal minds can weigh in and tell us any interpretation of the Constitution we want to hear.
Maybe it’s time to give Professor John Woo a call again. I’m sure he can find something in the Constitution to make our current surveillance state seem perfectly compatible with a free and democratic nation. If he can use the Geneva Convention to justify waterboarding, he can certainly find something in the Constitution that supports the NSA monitoring you through that Samsung Smart TV mounted on your bedroom wall.
