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.