Imagine a government that spies on its citizens, often without warrants. A government that holds secret court hearings, or a government that asserts the right to detain and jail citizens indefinitely, in some cases in distant places away from family and lawyers. Or a government that asserts the right to hunt down and execute its citizens on suspicion of being the enemy. Such a government we would describe as standing in contempt of human rights and individual liberties. It is a government some would describe as lawless. This is the government that some like Senators Ron Wyden, Rand Paul and others think is beginning to emerge in the United States as a result of stories about NSA surveillance of telephone calls and e-mail messages. It is a government, they say, that needs to confine and define the discretion of public officials to prevent the violation of individual rights.
The hallmark of the a free society is a rule of law that limits the discretion of public officials to violate individual rights. A constitutional democracy is one where the government is subject to legal limits and has a respect for what legal philosopher Lon Fuller once called an “inner morality of law” that recognizes not simply formal procedural regularity, but what political theorist David Dyzenhaus calls a substantive respect for freedom. Nazi Germany may have had procedural regularity, but it lacked the real respect for rights.
Yes, public officials need discretion to make choices, but those choices cannot be made with unbridled authority. To a large extent, this was the criticism of the American colonies when they asserted their independence from England in 1776. The Declaration of Independence catalogs a list of grievances and abuses of rights by King George III, including a failure to respect “laws for establishing judiciary powers.” There needs to be a balance established with the law, as publicly debated, defining the scope of discretion that public officials may exercise.
The American constitutional system was a reaction to the abuses by the king. It places both procedural and substantive limits on what the government can do. The Due Process and Equal Protection clauses are there to prevent arbitrary and capricious decisions and to ensure that every person is treated the same. The Bill of Rights places a substantive limit on what the government can do to people (may not abridge freedom of speech), and it demands, as stated in the Fourth Amendment, that the government needs to have particularized suspicion to search, detain or arrest individuals. One cannot have a Captain Louis Renault (from the movie Casablanca) “round up the usual suspects” approach to investigating crimes.
But to many, 9-11 changed many things, including government respect for constitutional limits on its powers when it comes to respect for individual rights. It began with the Bush administration and continues under Obama. Recent revelations of the NSA surveillance programs tracking telephone numbers and Internet data, along with the U.S. Postal Service photographing each piece of mail smack too much of an Orwellian big brother. These actions are taking place without warrants, or with warrants issued in secret court hearings by a tribunal that rarely denies a government request.
This news comes on top of what we have known for years, that the federal government, dating back to the Bush Administration, has been monitoring phone calls and that American citizens along with foreign nationals were held in Guantanamo Bay or rendered to secret CIA facilities abroad and tortured, force-fed and often detained for years without access to legal counsel or an opportunity to appear before a judge. Or that the president now asserts the right to use drones to kill Americans abroad suspected of being terrorists, without respect for due process or proof of guilt.
The justification for all this is national security. Perhaps we are a safer nation for all this, but we do not know. It is the same government officials whom the law is supposed to restrain who are making the case for why their actions are justified. We are asked by Obama and the NSA to trust the government or to accept that the ends justify the means.
This is not what a democratic government is supposed to do. Decisions about use of government authority to maintain national security should be debated in an open and transparent fashion. The government should be required in open court subject to public scrutiny to justify why it needs to monitor communications among its citizens, demonstrating that it has met the constitutional burden of particularized suspicion. This is what Americans fought a war of independence for and it is supposedly what separates the United States from undemocratic countries. Limiting discretion to protect rights is what the law is supposed to do, it is why the law matters.
Author: David Schultz is a professor in the school of business at Hamline University. He can be reached at email@example.com.