Eavesdropping on Our Founding Fathers: How a Return to the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis

Abstract

The 21st Century has brought with it a surveillance crisis unprecedented in our history – a crisis that threatens our core values, among them the right to free expression, a free press, protection from unreasonable searches and seizures, and privacy. The crisis also threatens the right of citizens to engage in democratic policy making.

It is a crisis that should surprise no one after the catastrophic events of September 11, 2001, wars in Afghanistan and Iraq, a never-ending so-called War on Terror, and a concurrent, unimaginable technology revolution digitizing our information and communication systems. Indeed, cataclysmic national security concerns coupled with the ability to monitor literally every communication of every American have spawned a generation of offspring with names like Stellar Wind, Prism, Upstream, Manning, Assange, Wikileaks and Snowden.

The article, "Eavesdropping on Our Founding Fathers. How a Return to the Republic’s Core Democratic Values Can Help Us Resolve the Surveillance Crisis", provides a look at the current crisis through the lens of the history that led to the passage of the Foreign Intelligence Surveillance Act (FISA), the legislation that lies at the heart of the current controversy and around which all administrations, Democratic and Republican, and America’s surveillance bureaucracy, the NSA, the CIA, the NDI and the FBI, have danced for nearly four decades. The article argues that a proper balance between legitimate national security interests and the sacred values and civil liberties that buttress America’s democratic institutions and aspirations can be best achieved if the current surveillance landscape is examined through that lens.

In sum, "Eavesdropping on Our Founding Fathers" argues that solutions to the current surveillance crisis lie in a return to core values and first principles that implement the intent of the Founding Fathers to create an adversarial system of checks and balances among the various branches of the government which included bolstering the independence of the judiciary – values and principles which were eloquently argued during the FISA debates. The article examines those debates and details compromises that were made in the final legislation that became FISA – compromises that ultimately undermined FISA and allowed it to become a tool of rather than a check on the Executive Branch whose power the Act was intended to curb.

Most important, "Eavesdropping on Our Founding Fathers" identifies five critical 'lessons learned' that, if followed, can help us resolve the current surveillance crisis.

➢ Lesson 1: Pay attention to the fundamental values of the Republic and the core goals that lie at the heart of the 1978 legislation. This portion of the article explores the recognition on both sides of the political aisle that the core values of the Republic were at stake when FISA was being considered and the importance of maintaining that focus today.

➢ Lesson 2: Pay careful attention to the historical roots of current conflicts and issues to provide broader context and guidance for future reforms. This portion of the article reprises the history of surveillance in America and the impact of that history on the passage of FISA. The article demonstrates that while Congress considered the broad abuses of the Nixon administration then fresh in Congress’ mind, it failed entirely to consider other points in American history where the national security card had been overplayed at the expense of civil liberties. In this portion of the article, a brief history of those critical moments, including the Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, World War I’s Palmer raids, the internment of Japanese Americans during World War II, McCarthyism in the 1950s, and COINTELPRO during the Nixon years, is detailed. That history demonstrates that playing the national security card has been counterproductive and the source of national soul searching, sometimes leading to reform (e.g. the passage of FISA itself in the aftermath of the abuses of the Nixon presidency). The article explains how the dramatic consequences of FISA’s drafters’ failure to consider this history are evident today.

➢ Lesson 3: Preserve the checks and balances of the branches of government that make the United States Constitution the ingenious and resilient document that it has proved to be over the past two plus centuries. This portion of the article explores the original intent of the Founding Fathers to create a system of checks and balances designed to preserve individual freedoms, including the importance of an independent judiciary. The article documents the utter failure of FISA to achieve such a balance, particularly with respect to the legislation’s judicial structure which features a secret court without opposition and populated by judges with remarkably similar judicial and political profiles appointed solely by the Chief Justice of the United States Supreme Court – judges who wittingly or unwittingly have become pawns in the Executive branch’s efforts to protect the national security. That reality is demonstrated by the fact that to date the FISA Court has granted virtually every Executive Branch request to engage in surveillance since the Act’s passage (In the 33 years from 1979 to 2012, the FISA court granted 33,942 requests for warrants and denied only 11, compiling a denial rate of .three tenths of one percent of the total warrants requested.)

➢ Lesson 4: Demand accountability, including honest and specific answers to hard questions; such as: Who is making the request for information and why? What is the utility of the information being sought? Has a proper showing been made that particular information is necessary? This portion of the article details the concern of legislators on both the left and the right that FISA’s compromise structure would eviscerate the ability to engage in effective oversight, a reality that the current crisis continually confirms.

➢ Lesson 5: Keep in mind the relationship of the government to the governed to guarantee citizens publicly active and uninhibited political lives in which they can feel comfortable dissenting from official policy. The Fifth Lesson explores the underlying political theory on which a vibrant democracy depends – a government in which citizens are involved in the decision-making process and able to engage in active and informed political discourse – and the consequences of FISA’s failure to create a structure that would enable such an environment to thrive.

"Eavesdropping on Our Founding Fathers" concludes by suggesting a framework for reform that builds on the lessons learned from FISA’s history and the startling 36 year history that followed.

Keywords: Surveillance, Foreign Intelligence Surveillance Act (FISA), National Security Agency (NSA), National Security Civil Liberties, Independent Judiciary, Executive Power, Separation of Powers, Checks and Balances, Constitutional Law, Due Process

JEL Classification: 033, 038