It is good news that Total Information Awareness has been blocked, at least for the moment. The great computerized search engine that was to have scrutinized our every blip has been put on hold by Congress. That John Poindexter, convicted of lying to Congress, was to have headed the project seems to have scared even the most loyal of Republican party-liners. Our fear should be only partly assuaged, however, because even in the absence of one big computer roundhouse, the recent and increasing consolidation of intelligence and law enforcement agencies still makes for an interconnected database of sweeping and potentially intrusive dimension.
While agencies’ sharing knowledge is important in dangerous times, the consolidation is justly controversial because of concerns about privacy and free speech. Yet when I discuss this with non-lawyer friends, many seem worried in an abstracted fashion, as though surveillance were an inconvenience on the order of a nosy and fussbudgety old neighbor. In many people’s minds free speech is a “right” to hurl epithets at politically correct wusses, and to do so with no fear of having your fraternity suspended.
But what is at stake in the First Amendment is the ability to criticize the government, not one’s classmates, with no fear of prosecution. It has always been a tricky proposition for the government to distinguish words that subvert, or threaten, or terrorize, from those that are passionately, unpleasantly and publicly disagreeable. Public accountability is how we have at least theoretically monitored that tension based upon an understanding that our institutions comprise an intricate web of checks and balances: a precise law from the legislature, executive action in extreme cases, that action checked by strong and independent judicial oversight.
The new powers of Homeland Security to snoop don’t refer much to that balance. The law is anything but clear. The executive has expanded its discretion to act secretly and without accountability–for what it admits will be a very long time–by claiming wartime powers. And the judiciary has ceded an alarming amount of its power of review to the executive–most egregiously in decisions, as I have discussed previously, to allow the President to designate citizens “enemy combatants” with no explanation whatsoever. In short, what we face is not just a matter of “the government” listening in on the lives of citizens but a structure in which only one branch dominates, that branch whose prime function is initiating military, police and prosecutorial actions.
And so we have the astonishing Kafkaesque situation where the military detains citizens without charges; where the police monitor campuses, places of worship, health records and political association with a finer-toothed comb than at any time in our history; and where the office of the Attorney General–the lord high prosecutor of the land–refuses to answer requests from Congress for information about how the new surveillance laws are being interpreted and administered.
If there is no official word about what is going on behind the wall of silence, there has been leaked draft legislation in which the Justice Department proposed stripping citizenship from anyone who supports terrorism (the definition of “support” remaining a troublesomely discretionary concept). The report was dismissed by John Ashcroft’s spokespeople as informal office conversation, not a big deal, just tossing ideas around. Call me a cynic, but I worry that it was even a ball in the air.
In the absence of clarity at this confused moment in history, one is left to imagine a range of possibilities, from mere mistake to wild excess. So let me offer some of my tamer fears as a way of suggesting discussion about what limits we the people might want to bring to bear on the process. For example, let’s consider the fear that those computerized search engines are very much like spellcheckers in their search for “pattern.” Recently, I happened to type the name “Amanda” in an e-mail I was sending. The spellchecker wanted to know if I didn’t mean “armadillo.” I worry that the military’s spellchecker will want to know if I didn’t really mean “armada.”
I also worry that mechanical perusals of massive amounts of data might be useful for identifying certain very broad patterns; but effective interpretation requires something more, like justice or mercy or wisdom–sentient intelligence, human intelligence, intelligence grounded in a sense of substantive as well as procedural fairness. Under the best of circumstances, third parties overhearing any conversation are just not going to get a lot of what is really going on. Full comprehension is hard enough if we are speaking directly to one another in the same idiom. It’s infinitely more complicated standing on the outside. Perhaps some of us have had the experience of reading a transcript of one’s words–from a meeting, a deposition, or a set of minutes taken by someone who is not listening with any suspicion, someone neutral but still not exactly your mother. If so, one is likely to be startled by the flatness of the record, and by the rampant errors and mishearings of the transcriber. The transcriber is a third party, an overhearing ear, someone who listens without a sense of inclusion and therefore with no response to inflection, no sense of context or history, and certainly no sense of wordplay. Few people ever willingly permit raw transcription to become official without at least some check for accuracy.
We must begin to think about what happens to freedom of expression if we risk detention for what is recorded without such checks for accuracy; if we can be prosecuted by the government for the unguarded, thoughtless word, the gypsy word, the loosely suggestive word that hangs in the brain with the wrong crowd, that associates in the computer with those words deemed evil or likely to do evil. We must begin to wonder what happens to us when FBI agents settle for the long haul in our spiritual, academic and scientific communities. It is not God or the muse who will be listening to our collective mortal imprecations, but Big Brother, who sitteth neither on the left nor the right hand of the Father, but squarely in front, blocking the view, intercepting prayers and decoding them for hints of treachery.