Tuesday, January 21, 2014

A Deeper Analysis of Whistle-Blowing from David Cole

I began this month with a post entitled "Recognizing the Need to Blow the Whistle," written in support of the editorial in The New York Times supporting the actions of Edward Snowden. In the latest issue of The New York Review of Books, David Cole has a more extended article entitled "The Three Leakers and What to Do About Them." Perhaps the most important thing about this piece is how skillfully Cole demonstrates how such a simple question cannot be resolved by a simple answer. He begins by trying the establish separate categories of legitimate and illegitimate leaks, from which he then delves into all the complexities involved in trying to tell one from the other.

When the Federalist Papers were written to convince the voters of what had been the original thirteen colonies that ratifying the Constitution was a good idea, one of the most important "selling points" was the way in which the Constitution established a system of checks and balances, under which no individual component of the government would be able to exercise total authoritarian control. It is thus no surprise that those who have tried to defend the actions of the National Security Administration (NSA) tried to make the case that they were as subject to such checks and balances as any other part of the Federal Government. This is where Cole makes one of his strongest points:
The only parties kept out of the “checks and balances” so often lauded by the NSA’s defenders were the American and global publics—in other words, the people whose privacy was at stake.
In other words, while there was a "regulatory chain of command" for reviewing NSA activities, those who most needed to express their offense at having been violated by those activities had no path through which to make their concern heard. Even if the the member of the House of Representatives elected to for their district was sympathetic, his/her hands were tied by the strands of the bureaucratic spider web woven by the wording of NSA regulations.

This, it is not only personal privacy that has been undermined and would well have gone unnoticed were it not for Snowden's whistle-blowing, it is that set of "principles of operation" according to which our government works, as it was explained to the first citizens of our country by the authors of the Federalist Papers.


jones said...

While I agree with the general thrust of your post, I do take issue with your characterization of the Constitution's ratification.

First, the Constitution is an aristocratic document, not a democratic document. The Founders represented a very narrow segment of society. The franchise was limited to white men with some land or wealth. When you look at the voting patterns at ratification, it's clear that the cities were far more in support than rural areas, and some states refused to ratify altogether. Close to half of voters rejected the instrument. All told, "WE, the People" represents the will of maybe 5-7 % of the population.

Consider the words of Chief Justice Marshall in his biography of Washington:

"So balanced were parties in some of them, that even after the subject had been discussed for a considerable time, the fate of the constitution could scarcely be conjectured; and so small, in many instances, was the majority in its favor, as to afford strong ground for the opinion, that had the influence of character been removed, the intrinsic merits of the instrument would not have secured its adoption."

Second, it's worth mentioning the Articles of Confederation, which the Founding Fathers deemed too limited and decentralized. The Founders met in Philadelphia, ostensibly with the "sole and express purpose of revising the Articles of Confederation." After meeting some time behind closed doors, the Founders emerged not just with an amendment or two, but a whole new government. They furthermore bypassed the existing amendment procedure in order to install their new government.

jones said...

Third, the checks and balances stuff is a bit of a myth. Article 1 of the Constitution (Congress) gets 10 sections. Article 2 (executive) -- gets 4 sections. The Judiciary gets 3. Congress is most powerful. This was by design.

Consider the words of Publius in Federalist #78:

"Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

The Founders wanted a neutered Judiciary in order to prevent common law from eroding the privileges the Founders reserved for themselves and their voting minority. Congress made themselves the most powerful. Remember, most people couldn't vote, so the "political rights of the Constitution" applied mainly to a small minority.

Madison, in debate, June 26, 1787, described the matter quite succinctly:

"An increase of population will of necessity increase the proportion of those who will labour under all the hardships of life, & secretly sigh for a more equal distribution of its blessings. These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former. No agrarian attempts have yet been made in in this Country, but symtoms, of a leveling spirit, as we have understood, have sufficiently appeared in a certain quarters to give notice of the future danger. How is this danger to be guarded agst. on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded agst.? Among other means by the establishment of a body in the Govt. sufficiently respectable for its wisdom & virtue, to aid on such emergences, the preponderance of justice by throwing its weight into that scale."

The Constitution was designed to prevent a "leveling" democracy "on republican principles." History attests to the efficacy of the Founders' plan: it took close to 200 years to achieve the type of universal suffrage that most people think of when they hear the words "WE, the People."