UNIVERSAL SURVEILLANCE SAPS OUR NATIONHOOD
…what constitutes the strength of a nation is not
so much its physical vigor, its military aptitudes, or,
so to speak, its barbarian intensity, which is what
the noble historians of the early eighteenth century were
trying to describe. What does constitute the strength
of a nation is now something like its capacities, its
potentialities…. Which also means that the defining
characteristic of a nation is not really its dominance
over other nations…. It is something else: its ability
to administer itself, to manage, to govern, and
guarantee the constitution and workings of the figure
of the State and of State power.
Michel Foucault, “Society Must Be Defended,” Tenth Lecture,
College de France, March 10, 1976.
I first became aware of “total surveillance,” now advocated with oratorical interjections by
President Barack Obama, back in 2003, when it was directed by his predecessor
toward Saddam Hussein in Iraq. There
were more than 200 United Nations weapons inspectors in Iraq, with more
sophisticated equipment than they had during the 1990’s – and additional
inspectors were on the way. The French,
who did not want to see a U.S. invasion of Iraq, had lent the services of two
mirage jets with further equipment to detect weapons of mass destruction. Similarly, the Germans had provided two
drones carrying their own devices. The
United States had spy satellites, AWAK planes and U-2’s trained on Iraq. Moreover, both British and American jets were
flying detailed patterns over Iraq to identify any visible suspicious activity
of Saddam’s army or his scientists. In
essence, Saddam Hussein, even if he had WMD, was effectively neutralized.
Nevertheless, George W. Bush ordered the weapons
inspectors to leave that country. Logic
impels the conclusion that he ordered the weapons inspectors out of Iraq; he
did not want them to complete their task, because he knew that they would find
no weapons of mass destruction. Thus “W”
would be deprived of any pretext for invading Iraq. It has always been my view that “W” wanted a
war with Iraq to rally Americans around himself, to forestall the Democrats from
using 9/11 as a campaign issue against him in 2004. What he could not foresee was the patriotism
of John Kerry that would forbid him to do what Bush, and especially Cheney,
would have done had the situation been reversed.
Instead of using total surveillance as a basis for
managing the situation diplomatically, “W” used his total surveillance to
manufacture a fictitious threat to the United States and to manipulate public
opinion in favor of a fraudulently preemptive war. Bush created a synthetic reality no one could
dispute. Once he posited the perjured
assertion that Saddam had sought uranium from Africa, Bush’s handmaiden, Condoleezza
Rice was free to assert that we could not wait to find a smoking gun: the
smoking gun could take the shape of a mushroom cloud. That is why it became imperative to discredit
former Ambassador Joseph C. Wilson IV and later, his wife, CIA nonproliferation
operative Valerie E. Plame, when Wilson discredited Bush’s claim regarding Iraq’s
nuclear weapons potential.
Controlling all the information, the Bush Administration,
especially through the good offices of the once and future Senator John McCain
(R.-Ariz.) [with Vice President Dick Cheney (R.-Wyoming)], added to the
mythical reality by further assertions.
He said our forces were properly trained and battle ready. They were not. He said the troops would be welcomed as
liberators; he knew they would not. He
promised that the war would be of short duration and casualties would be few;
he was in no position to say so, and in the event, his words proved to be
A major problem that comes with universal surveillance is
that this grotesque and unconstitutional power places the Executive and its
familiars in the position of being able to create any phony reality they wish
to create for any political purpose whatsoever.
If Obama were to tell us that a rebellion was imminent in an alleged Tea
Party stronghold anywhere in the United States, and that such a rebellion had
to be smothered in its cradle, so to say, by use of federal military force, who
would be in a position to contradict him, comedy entertainer Bryan Williams?
In his interview with Charlie Rose, on June 17, 2013,
President Obama demonstrated a verbal mastery of the complexities of domestic
and foreign intelligence gathering that was truly impressive. On the other hand, most of what he described
as active and future safeguards against surveillance leading to invasions of
privacy, and invasions of privacy leading to unwarranted government measures
against private citizens (including businesses, not-for-profits, professional
associations, unions, religious groups, political organizations, etc.) was
based upon what the bureaucrats have reported to him.
About a hundred years ago, some leading thinkers
would have likened the functioning of the Presidency to that of the chief
operating officer of a corporation. And
there is still a strong case to be made for having responsibility and
accountability for the operation of the Administrative Branch of Government
lodged in the constitutional Chief Executive.
However, it is plain to say that the President cannot effectively
control the entire federal bureaucracy. Given
the other responsibilities of the President, he (or she) could not, hands on,
control any group of functionaries who act even under a single rubric, as for
example domestic intelligence gathering.
Although the President is charged by oath to the best of his ability to “preserve,
protect and defend the Constitution of the United States,” one person with good
intentions is too slim a reed to shield the average person from the gothic
intricacies of big government – which no longer even pretends to be as beneficent
as “big brother.” We must also be
mindful of the caveat described by Justice Oliver Wendell Holmes. Our constitutional system must always beware
of the consequences of a bad man’s view of the law. Remembering Nixon, we cannot always count on
enjoying the leadership of as kindly and saintly a President as Obama.
There is a need to examine extending the Constitution to
create protections for the citizen against the Administrative Branch of
Government. Like all the other provisions
of the Constitution, the Fourth Amendment is not self-executing. This reality is what led the courts, a
generation ago, to preclude the introduction of evidence in criminal cases
obtained through “unreasonable” searches and seizures. Now, especially at Guantanamo, we see a
government that concedes that principle, but in the person of Obama counters by
saying that if we obtain the information dubiously, we will simply hold the
individual in detention until hell freezes over. We need to expand the capacity of the
citizens to have greater control over the Executive Branch, including the
President. My suggestion would be to
establish a Constitutional Commission that could examine options, for example,
along the lines of the Conseil d’Etat of France and their system of open, not
secret, administrative tribunals.
King Henry VIII would have been thoroughly in tune with the FISA Court: In the
16th Century, a similar court was known as "The Star Chamber!"
Finally, it seems to me that the greatest danger of
universal surveillance is how such a system undermines the whole superstructure
of Constitutional law based upon the presumption of innocence. When President Obama has to say that no one
is reading or listening to the content of our communications, the fact that the
President (who does not know the truth of what he is saying except by the
reportage of bureaucrats who have seen and will see many a President come and
go), we are already in deep, deep trouble.
I hope the news media will take sides. Too often I hear the “analysts” and “pundits”
on television laugh gleefully over or treat superciliously our loss of privacy. Overblown, overpaid and over important, they
simply cannot “get” the simple truth: freedom of conscience leads to personal
opinion; personal opinion leads to public opinion, and public opinion leads to
public policy. Universal surveillance
interrupts this chain and has a chilling effect upon each stage of its
progression. If, for instance, Lawrence
O’Donnell really believes that universal surveillance does not threaten his
freedom of conscience and his freedom of expression and his freedom of a form
of “the press,” then he is really the very last person I would have thought
needs a daily dosage of I.Q. enhancing medicinal capsules.
Harvard Hollenberg is a writer and an appellate lawyer in New York City.
© Copyright Harvard Hollenberg 2013. All rights reserved.