In the aftermath of last week’s major revelations about the National Security Agency, Hayes Brown has a great piece in which he catalogues the many times in American history when the country has (rightly or wrongly) put national security before individual liberties. In response to the now-famous leaker Edward Snowden’s assertion that “we managed to survive greater threats in our history . . . than a few disorganized terrorist groups and rogue states without resorting to these sorts of programs,” Brown takes us on a comprehensive tour from the 1798 Sedition Act to the fight against Al Qaeda. He notes that “history is replete with instance after instance of the U.S. government suppressing or outright violating the rights of its people in the name of furthering national security.”
This isn't at all to say that the NSA or the Obama administration should get a free pass on allowing these surveillance programs to grow and flourish under their watch. . . . Not nearly enough debate has gone on in the harsh light of day over just what freedoms we are willing to exchange in the name of security. But in conducting that debate, we would do well not to delude ourselves into falsely remembering a time when the United States was innocent of breaking the trust of its people in the name of protecting them. That time never existed.
This takeaway is dead-on. Obviously, the history doesn’t excuse any of the post-9/11 actions of the Bush and Obama administrations, but it does help to put them in perspective, and it effectively dismantles the myth that underpins Snowden’s comment.
Yet there’s at least one way in which what is going on now deserves special attention. Namely, programs such as the NSA surveillance ones are in place in the service of fighting a conflict that is indefinite by design or by nature. In contrast, many of the infringements on liberties that Brown highlights—for example, Abraham Lincoln’s suspension of habeus corpus in the Civil War, as well as postal censorship and the creation of internment camps for Japanese Americans during World War II—were linked to traditional wars with fixed beginning and end dates. When the wars ended, so too did those practices. Some of the other abuses—Joseph McCarthy’s anti-Communist crusade of the 1950s comes to mind—ended when those responsible for them were perceived to have overstepped their bounds. The basic, if unstated, bargain between the public and Washington would appear to be something like this: that in times of war or great national emergency the government might aggrandize its powers and impinge on individual liberties, with the promise that things would return to normal after the crisis ended.
Today, the United States is still engaged in one “hot” war in Afghanistan, but the broader “long war” will endure well past the anticipated Afghan drawdown. Last month, in congressional testimony, Michael Sheehan, the assistant secretary of defense for special operations and low-intensity conflict, said that he believed the war against Al Qaeda and its associated forces would go on “for at least 10 to 20 years” from now. There is little conception of how and when this war ends—or if it ever does at all. And even if it does, and Al Qaeda is someday effectively eradicated, there will doubtless be other future threats that some lawmakers will argue make programs like the NSA’s necessary in order to counter them.
So, while the NSA’s collection of telephony metadata and information through major Internet services providers is far from the greatest infringement on Americans’ liberties in our country’s history, it may prove to be one of the most enduring. Barring a concerted effort to roll it back, there’s good reason to think it will not follow the pattern of naturally fading away after a conflict, but rather simply become part of a new status quo that Americans just come to accept and take for granted.