The 4th Amendment, the 4th Estate, and the Slope upon which we Slip

If we’re to welcome truth and transparency as we say we do, why the urge to persecute a truth teller?

In our earliest Politics and Government courses, we learn about how the United States set up a system of checks and balances to keep one particular part of government from becoming too powerful and thus, tyrannical. And so the branches were separated into executive, legislative, and judicial – each with distinct responsibilities and powers that could reel in the other two. We decentralized power from the federal to the state to give more power to the people and then imposed voting restrictions to make sure the people didn’t amass too much direct power themselves.

 

Unwritten into the three branches of government, but included in the Bill of Rights, is a fourth that, when used in the manner in which it was conceived, provides a check to an out of balance government that has merged the three branches into an monster of our own creation. At least, that’s what Edward Snowden is counting on the Fourth Estate to provide. His life, and much more, depends on it.

 

It’s easy to get caught up in the hype of fear, especially when we have the first hand experience of terrorism in our recent memory. Many of us in New York and Washington witnessed the assaults on 9/11 firsthand. I did. In the wake of fear, we forfeited certain rights in the name of safety. And that’s what this debate that the president keeps saying he’s open to having is really all about: how much of our civil liberties are we willing to sacrifice in the name of safety? The Patriot Act was born of a time where we, as a nation, felt vulnerable to violence. We allowed our legislators to loosen its grip on our search and seizure laws to intercept information from terrorists. It was for our safety, and because the image of three thousand corpses lay fresh in our minds, we gave a half-hearted protest. Because we weren’t really protesting it. Because it felt safe.

 

And yet.

 

The great James Madison, in his discussion of what we should include in this radical experiment of a country, considered the checks on government to be tantamount to its lasting success. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

 

And yet, in giving the powers that be the go ahead to mine personal data, to torture, to assassinate, to use drones, to hold prisoners indefinitely and to persecute those who risk all to tell us about it is exactly a government who has failed to control itself. The checks aren’t working. The balance has tipped. And the last ditch effort of a true government of, by, and for the people is to bring the truth to the people through the press and hope they haven’t become so insulated by streams of information that they can discern what is at stake. And act.

 

The Fourth Estate cuts both ways: it can exonerate, and it can convict in the court of public opinion which wields incredible power. And the smear campaign predictably begins, with journalists combing through Snowden’s teenage web presence to his girlfriend’s salacious job. Much has been made about his GED, which speaks more to elitism than Snowden’s capability.  It’s lazy, it misses the point, and it tarnishes the bad name that some liberals have already earned. It has prompted respected columnists like Rick Unger, political contributor to Forbes Magazine, to fabricate a quote and deride Snowden’s reputation and respectability based on it.

 

“Snowden declared, during a live chat with the Guardian on Monday, that he believes that “all spying is wrong.” And because it is Snowden’s personal judgment that all spying is wrong, he also believes it appropriate that he reveal our covert activities to affected foreign governments without a shed of concern for what the rest of his fellow Americans might think about this.”

 

Except nowhere in the transcript of Snowden’s live chatdid he voice that sentiment. It was a deliberate misquote and an example of shoddy journalism by a respected writer in a respectable publication. Why? The revelations that Snowden disclosed secrets about our spy programs to China and at the G20 summit in 2009 provide a welcome relief to those who only want to vilify. Yet if we’re to welcome truth and transparency as we say we do, why the urge to persecute a truth teller? Might it be because we want no part of the truth that’s coming to light, because it opens up a can of worms which, at its bottom, reveals that our president is not the liberal wet dream we hoped he would be? That even without Republican obstructionism lies a man whose political philosophy is more complex than the Aaron Sorkin screenplay we’ve written for him in our imaginations?

 

If we paint Snowden as a bad guy, does that make Obama good? Is this the dichotomy that we have to choose between? Yeah, I kind of think it is. Are we to vilify Snowden for making an awkward situation for the president at this year’s G8 summit? Or do we celebrate that a citizen is making our president take responsibility? That is the job of the populace, who cannot do so if they are not informed. That is the job of the Fourth Estate. It’s how we keep the powers that be in check.

 

Yet, the media has largely kept up with the hero/traitor narrative, with most concluding the latter. Much has been made of his self-extradition to Hong Kong (and now Russia) as traitorous and cowardly, when it’s really another form of information – it brings to attention the lengths this administration has gone to persecute whistle-blowers. They are not safe in America anymore, as they were when Daniel Ellsberg released the Pentagon Papers. There have even been assertions that Glen Greenwald, Snowden’s (in)famous interviewer (parentheses are depending on the audience reading this), should face persecution himself for the act of journalism.

 

These signify a dramatic change in this country, not only in legislation, but in the mindset of the governed. We have moved from a representative democracy that rests on inalienable rights to secret courts, private subcontractors of the NSA compiling files of our personal digital correspondence and the “people” of the US calling for the head of the person who brought it to light. The big picture here is the loss of the American value system. It’s easy to promote freedom of the press and freedom of speech, due process, and search and seizure protections when you aren’t afraid and there is no direct threat, but it’s much harder when you are. But I think it’s the cornerstone of who we are supposed to be and if we lose that, we lose the identity that people died for, fought for, wrote, argued, and marched for. It’s the last shred of justified exceptionalism.

 

We can question why Snowden’s revelations have prompted outrage because he’s making us confront a truth we’d rather not consider: we like spying. We are okay with unwarranted phone tappings and the blurred lines of the 4th Amendment. Because it  gives us the illusion that we are safer from the bad guys. That illusion is worth its weight in gold – or blood.

Or conscience.

Author: Jaime Franchi

Jaime Franchi is a freelance writer living on Long Island. Her work can be found on Salon.com, Milieu Magazine, Punchnel's and the New York Times. www.JaimeFranchi.com

17 thoughts on “The 4th Amendment, the 4th Estate, and the Slope upon which we Slip”

  1. There are about a dozen bits in your piece that we could debate (politely), but it’s more productive, I think, to stay on the most global issue that you – and Snowden’s public (and perhaps private) release of classified information – have raised: the balance between the rights of the citizens of the US to know what the NSA/prez are doing and the duty of the prez/govt to keep US citizens/property safe. As you allude to and, notably, as President Obama said in his first news conference on this issue, it is, inherently and by Constitutional design, a balancing act; like the branches of our government, there are classic checks and balances.

    On one hand, we have US citizens and govt employees, dozens of them – employees at NSA and contractors like BoozAllen, supervisors, judges (who rotate) on the FISA court, members of the Congressional Intelligence Committees, high-level White House staff, Secretaries of most or all of the Cabinet, the Director (and others) at the CIA, VP Biden, President Obama – who all have the highest security clearances, who see and approve everything – every single thing – that’s being generated, the vast majority of whom, I submit, would have grave concerns if they felt something unlawful was afoot or that the privacy of ordinary, innocent American citizens was being violated. Many of these people have significant, comprehensive knowledge of US law and government regulations and our history.

    On the other hand is Edward Snowden. One guy. Who thinks he knows enough, based on his 29 years of life history, to decide – for himself, for me and all of my fellow citizens – that it is better for us as individuals and better for the US as a nation (in every way the country will be affected, singly and with our allies) for him to decide – to make THE judgment that he knows more and better than all those people in my preceding paragraph and that he should violate the terms of his security clearance and disclose information that he legally swore he would not.

    There is a lot of data we could mine ☺ – how the metadata is collected, what it is and isn’t, how individual citizens have or haven’t been harmed, what the FISA court is and how it operates, what a warrant is, how national security depends in large part on communications data, what safeguards are built into the system, how some of us remember a lot about bad guys long, long before the attacks of September 11 – but I’ll stop here because, for me, it’s all about trust. I trust the system, the lawyers and judges in the third branch of government, the checks inherent and in place, and, yes, the president – the one who is being called a traitor by Snowden’s new friend, Julian Assange – more than I trust Snowden. I weighed the evidence I have so far, and I come down, without hesitation, on Obama’s side.

    It is still early in this process. I believe we will learn a lot more about Edward Snowden and his motives and what good or evil will come from his actions. All I can say is that what has unfolded since the first news came out is not making him look better.

  2. Well, hello Candace. I appreciate the length and depth of your comment and while I won’t answer you point by point, I will say this: I’m happy that you trust President Obama over Edward Snowden. That makes sense. You just met Snowden a few weeks ago. But I wonder if you trust the next administration as much? Because this precedent is set for whomever the American people, in their infinite wisdom, elect. I’d also question whether that trust is warranted, in the face of the facts about unjust laws made legal through secret courts that impinge upon our most sacred rights. You know how I felt abut electing Obama to a second term (and the first.) But I question his continuing steps against the civil liberties of the people. This isn’t an isolated incident, but yet another.

    We elected a constitutional scholar – and no one on recent history has had the ability to step around that document like this president. It’s worrisome. And it opens floodgates for future leaders, at which point we will know what is now illegal and how our hands are ted.

  3. Well presented and argued, Jaime. As a retired news reporter I’m reflexively skeptical of any authority – even those with which I ordinarily agree. “If your mother says she loves you, check it out,” was the credo of my vocation. Not so sure our modern practitioners in the 4th estate are as apt to turn over ever rock, especially when their employers are more and more coming under the dominion of mega-corporate interests that have little regard for the traditional ideals of the institutions they own. More and more the media seems to be taking the entertainment route, pandering to baser expectations, which is easier, of course, and, in my opinion, irresponsible if not outright cowardly.

    My reporter’s instincts immediately quickened when the Snowden stories broke. Just as with Ellsberg’s and Manning’s actions, I felt a sense of rightness, like the opening of a boil, the shining of a light on a nest of roaches. Self-proclaimed “progressive” are responding with an blasé air, claiming they weren’t surprised by anything contained in the leaked documents and sneering at Snowden as a prima dona playing to the balcony. My feeling? So the fuck what? He’s punctured a boil and shone some light on a nest or two of roaches. Far as I’m concerned he can wear a tutu now and prance forever more.

    I’m still glad we elected Obama over that asshole, but I’m more and more seeing our president in a colder light. Bring back Harry Truman!

  4. First, a very well-written and reasoned piece, and a sound argument. I may not agree with all of it, but I do respect the great deal of thought that went into it. Like Candace, I trust the President, and while I fully understand the implications of what future administrations might be able to do, this has been true for at least since…ironically for Mr. Paust…Harry Truman’s reign. Truman created the NSA. No that is not precisely so; he made a private organization, formerly called The Black Chamber, a part of the Department of Defense, which he also created – both in the year 1949. So Mr. Truman might not be the person to point to when it comes to nostalgia for absolute transparency. Then comes the issue of persecution of whistle blowers and it being harder for them now than when Daniel Ellsberg spilled The Pentagon Papers. Daniel, with whom I have tried (in vain, so far) to go to jail, stayed here in the states to face his fate, which was either death or life in prison. He was eventually exonerated because of the consequence of the content of those papers. More recently PFC Bradley Manning did a similar thing, for a similar reason: because of gross misconduct by the United States military against foreign civilians. It wasn’t because we had spying programs in place, but because “we” had, with malice aforethought, murdered citizens to further wars which were unjustified on their face. True, Daniel has expressed sympathy for and solidarity with Snowden, and we will no doubt talk about that at some point, because as with Mr. Asange, there has come a tipping point re: “treason,” and trust. The failure of almost everyone to understand the definition of treason has left us once again polarized over an issue, and this is not by accident. The more we remain divided, the more the desperate Right hopes it can salvage something from this having lost a Presidential election and the Senate to us lunatic liberal Democrats. Snowden’s role in this passion play? Only god knows. I don’t think it was politically motivated. It seems to have been more a matter of exactly a passion play. And while some good could still be accomplished by such a move, it doesn’t appear, to me, to have been the case as yet. The argument that future administrations could abuse the power at their disposal does not erase the fact that past administrations, numerous ones, already have done just that. From Nixon to Bush Cheney we have gross examples of abuse. Now what we do have, and which is why I admire this article as I do while disagreeing with some of its basic premises, is that Fourth Estate, which is tearing at its own throat right now. It has been corrupted for quite some time, but rarely, outside of Fox News, has it been so openly at war with itself as it has in this case in point – and I do not mean Mr. Snowden or Mr. Greenwald, who have both done what they have felt is right, and left it for us to reason our ways through it, which is precisely what the Fourth Estate does. No, I am talking about David Gregory, who already committed a clear crime on television in front of millions of viewers to make a good point (and was given a pass by law enforcement in the name of journalistic need). Gregory, by asking Greenwald if he should not be charged with a crime, has violated the most sacred understanding of the Fourth Estate, and for me, that is where the danger here lies. Not in whether or not we are being spied on (and I believe not), but whether or not anyone is free to report what is news without being called a criminal. Greenwald did not carry with his reportage the risk of betraying the trust of his government. Snowden did, and as a whistle blower he is not a true member of that Fourth Estate, though he worked within it to broadcast his information, which is much like an attorney-client relationship. This is what I see as the danger here. Snowden, in facing espionage charges, has dug in deeper and is apparently shooting for treason. His choice of places to hide have all been explicitly off the security map. I find this odd. I also find it odd that we are having such a grand debate over whether he is a hero or a villain, and how he got his job (the latter is utterly without merit as a question). We are divided over an issue that is fairly simple, but has been fostered by the far right: distrust of government. If we cannot trust our government we had better have some evidence of why. The fact that it feels our pulse, as opposed to creating staged wrongdoing (COINTELPRO, etc.)is behind us. It already happened. I don’t think it is either a question of whether or not the current President can walk on water. Those are the distractions, offered for five years by the right, which are now sinking in and dividing us over here to the left. All that said, I do believe our collective fear and paranoia is unfounded and had we not fallen for that during the years 2000-2008, we might well not now be having this discussion at all. It started in 2001. This President has had very little to do with its continuation. But far worse violations of our personal rights and privacy were perpetrated by even earlier administrations. If Mr. Snowden has done us any good at all, it is probably to have brought to the surface this issue of policy being driven by fear – and distrust.

  5. i don’t see any point in debating this since we obviously see it from opposite sides of a pretty wide chasm, and i respect your opinion, but i will point out a factual error.

    i didn’t say i trust president obama more than i trust snowden. i said i trust the system that exists that collects intelligence for our government, the independent courts and jurists who review it and rule on it, the senators and congressmen who are made aware of all of it and who passed the laws that allow it, and the members of the executive branch who use it. there are dozens, perhaps hundreds of those people, all experienced, all knowledgeable, from all three branches of our Constitutional government, who are sworn to uphold our principles and protect our citizens.

    when an earlier administration’s warrantless wiretapping was discovered and made public, the system worked to put in place the reviews that are currently in place. i expect if any administration, Obama’s or a future one, were to do something it shouldn’t, the same system that’s in place would operate efficiently again to solve that problem.

    that’s what i trust. as the president said in his first news conference on this issue (paraphrasing): if you don’t trust any of the three branches of your government, well, you’ve got a problem.

  6. Candace, while I completely understand where you are coming from in terms of safety nets, there’s more to these precautions than meets the eye.
    The FISA court is an entirely new and secretive phenomenon. How secretive? They’re actually called “secret courts.” The congressional oversight committee does not have access to the court rulings, nor are they available under FOIA.
    The past two administrations have sidestepped the very safeguards that were in place after the Church committee overhauled executive authority in the wake of the Nixon era scandals. Judicial oversight has been eliminated. Warantless wiretapping has been normalized and codified retroactively and the government has also allowed itself to begin archiving data in order to indefinitely profile citizens.
    Moreover, much of this work has been privatized. This should have civil liberty alarm bells ringing throughout the nation. Yet the program is cleverly worded to disguise governmental malfeasance. Here’s how:
    “The Patriot Act.” The very top of the slippery slope with a catchy jingoistic title.
    FISA amendment. The “amendment” strips away the original intent of the act, which was to ensure transparency in surveillance. This “amendment” doesn’t amend the intent, it alters it 180 degrees.
    NDAA – this act was amended to update the Authorization for Use of Military Force in the war on terror. The original AUMF was designed to go after terrorists responsible for 9-11 or MATERIALLY supportive of known 9-11 terrorists. The “update” in the NDAA changed it to anyone suspected of terrorism, took away the definition of it, withdrew the reference to 9-11 and changed “materially” to “substantially” supportive, which means moving away from financial support or safe harbor to something entirely undefined.
    This is a battle of semantics with extraordinarily high costs.
    What is happening here is that the past two administrations have moved away from time-tested, constitutional safeguards for both safety and civil liberties to a system that is opaque AND controlled more by the executive branch and the companies who fund campaigns now that money is protected as free speech.

  7. Jed, I appreciate your response and your views. I too think the SCOTUS got it wrong on Citizens United and that the fallout from that case does and will continue to haunt us. I also believe that there is room for discussion about the original Patriot Act and the intent of the administration that proposed it; we all know it became law while the citizenry was reeling from the attacks of September 11. In general, I think the amendment that added the FISA court procedure was more positive than negative since a FISA court, secret or not, *is* judicial review.

    And, yes, the FISA court is secret. Because it is dealing with information that is highly classified – persons or entities that the government (CIA, FBI, etc.) believe to have connections to known overseas terrorists/orgs. There are, as I mentioned earlier, eleven judges who rotate, and there *is* a review panel of three judges who hear/pass on appeals made from the rulings of the main FISC.

    Lastly, I’ve been trying to find evidence since I read your comment earlier today that “warrantless wiretapping has been normalized and codified …” and I’m unable to come up with any. NSA Director Clapper and President Obama have both said that wiretapping (actually listening to a telephone conversation) has not happened and cannot happen without a specific *prospective* (not retroactive) warrant approved by FISC. I’m not being flippant when I say that if I believed warrantless wiretapping was happening, I would first have to believe both of these men were being dishonest. And I don’t. I did find an article here that might be relevant: http://www.businessinsider.com/cnet-story-wiretapping-shot-dni-statement-james-clapper-2013-6.

    I think, as a lifelong Democrat and progressive, that we shouldn’t be complacent about what our government does in the name of national security and that we need competent investigative journalists to keep their eyes and ears open when it comes to the protection of our civil liberties. I appreciate how you see this current situation. I view it with substantially less suspicion, for the reasons I hope I explained respectfully. Thanks for providing a forum for a discussion of what is a very important topic.

  8. Clapper lied to Congress and has subsequently been forced to admit as much by the Snowden revelations. That’s the crux of this whole thing. They DID lie and there is a massive surveillance program already underway. This whole affair has actually proven quite embarrassing for Clapper.
    I have to clarify the FISA court issue as well. FISA was established after the Church committee revelations of Nixon wiretapping and illegal US interventions and assassinations abroad. THIS FISA ruling strips away the procedures and intent of the original by pushing it away from normal judicial review.
    The process of obtaining warrants for surveillance worked well enough in this country to take down the mafia, an organization responsible for far more death and destruction than any terrorist organization. The original FISA established another line of defense to prevent executive authority and privilege from going too far. What we’re seeing, and what you’re referencing, is the exact opposite of FISA’s original intent. This is extra-judicial in nature.

  9. I think we are at a point where a healthy distrust for the government, especially regarding privacy, is more than rational, it’s mandatory if we expect to maintain any form of democracy in America. Thoughts like, “The government is spying on me!” and “You know they watch everything you do!” have gone from the arena of wacko conspiracy theory to the arena of verified fact.

    This most recent scandal has proven that the Obama Administration is no different than the local mob thug who shakes you down for protection money. Like the mob thug, they pretend that they’re keeping you safe from outsiders, but it’s painfully obvious that they’re the ones you have to be afraid of. We are handing them our civil liberties under the counter in a dirty envelope.

  10. The discussion, for me, is a profound one. There is nothing more sacred than communication with a priest, spouse, lover, lawyer and doctor. Your financial and healthcare information is equally sacrosanct. I do care who is creeping into our private world with ready access to our most personal information and have a greater concern for the professional hackers who access computers to glean financial and personal information to gain an advantage in obtaining one’s identity, have more negotiation power in a business transactions or take down the infrastructure of a business causing huge financial loss. This is what pisses me off because it affects the regular person, the elderly, and the small business owner in ways that can fundamentally alter their life. There is nothing more intrusive than a computer peeping tom who takes pleasure stealing from an unwitting victim. While we have intellectual conversations and debate about the NSA Prism program and the future of the Patriot Act, the government should be actively educating the public about how to protect your smartphone, tablet and computers from computer peeping toms. The question is: Who is going to be the brave leader to educate the public so we can be our own best advocate protecting our liberty and privacy rights?

  11. Point of clarification re: “respected columnists like Rick Unger, political contributor to Forbes Magazine.”

    Frankly, I’d never heard of this ‘respected columnist.’ I stopped reading Forbes, for the most part, when son Steve took over and gutted the lively, useful reporting that his father Malcolm used to sponsor. Rather, Forbes readers are served austerian, goldbug economics and extreme ideological fantasy from the likes of Dinesh D’Souza.

    To augment this stint Unger serves as a token whackamole liberal in place of Combs at Fox. How, then, does he qualify as ‘respected’?

  12. @Dorian – Point taken about the “respected” columnist. i was shocked, really, that Forbes would print such a blatant misquote about such a high profile subject. I think it speaks to the larger point about media trying to influence perspective re: Snowden. If anything about this subject is transparent, it’s that.

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