By Courtney Wojcik

http://www.henry4school.fr/Sciences/big-brother.htm

Kate Martin’s Constitution Day Address at Dickinson College framed the persisting struggle for power between the executive and legislative branches through the lens of government surveillance. Her approach chronicled the loss of privacy brought by the executive’s unrestrained assumption of power and the largely unsuccessful checks employed by Congress. Martin claimed that this has led to the potential for the easy creation of a “police state” (Martin, Dickinson College Clark Forum). Martin presented a convincing case for the necessity of government transparency supported by historical analysis.

This debate stems from the opposing values outlined in the Constitution and the Bill of Rights. Article II of the Constitution stresses the importance of executive capabilities to protect the nation, primarily through the power to act as “commander in chief” (US Constitution, Article II). According to Martin, this clause gives the president the ability to hide actions under the guise of national defense and has led to the executive’s encroachment on public privacy.

In contrast, the Bill of Rights ensures “a reasonable expectation of privacy” (Martin, Dickinson College Clark Forum). Under the 4th Amendment, citizens are protected from unreasonable searches and seizures of property, limiting the government’s power to lead investigations based on hearsay and unwarranted information. These two opposing ideals, both vital to liberty, have led to a constant struggle between the protection of privacy and national security.

The executive branch has historically usurped the power of privacy by over emphasizing the importance of national security. During the 1798 Quasi-War with France, Congress passed the Alien and Sedition Acts in an attempt to protect the government from “scandalous and malicious writing” (Herring, 87). George Herring, the author of From Colony to Superpower, asserts that although the Sedition Acts were a relatively liberal interpretation of libel laws, they were instated in the interests of national security at the expense of free speech.

This violation of natural rights is repeated throughout American history. For example, the 1936 US v. Curtiss-Wright Export Corp Supreme Court case reaffirmed the belief that secrecy of the executive may be highly necessary in international affairs (Martin, Dickinson College Clark Forum).

The most recent evidence of an invasion of privacy is the USA PATRIOT Act. Justified by the need for tightened national security after 9/11, the NSA was granted the authority to operate outside of FISA’s parameters. This is concerning because as technological capabilities have increased, the strength of restraints on government has decreased. Currently, NSA has the capacity to pick up all international communications, and most likely keeps records of domestic calls (Martin, Dickinson College Clark Forum).

Congress has attempted to barricade these violations through acts of law, and are periodically supported by the Supreme Court. The 1952 Youngstown Sheet & Tube Co. v. Sawyer case reaffirmed the legislative power of Congress in “both good and bad times” (Justice Hugo Black). This case established the principle that the president cannot overstep his boundaries even in times of war, and that his power is greatest when acting with Congressional support (Martin, Dickinson College Clark Forum).

The Church Committee, formed to investigate intelligence gathering after the Watergate Affair, was one of the first steps to reform. While they acknowledged the potential of foreign influence, they still called for structural changes to create a system of oversight. Although the Church Committee achieved is goal of increased government transparency, the Bush administration blamed their failure of detecting 9/11 on the very same results.

Furthermore, the Foreign Intelligence and Surveillance Act of 1978, which explicitly prohibited Article II powers in regards to domestic phone tapping, was amended to lessen its restraints. Under the 2008 version, individualized warrants are no longer necessary, and although US citizens cannot be directly targeted, wire tapping is permissible if they are linked to foreign influences in any way (Martin, Dickinson College Clark Forum).

The persistent assumption of power by the executive branch, despite obstacles presented by Congress and the Supreme Court, has created a precedent for Bill of Rights violations. Congress, through the power of the purse and legislative action, has the ability to stop aggressive executives. Until this issue is brought to public attention, however, we have no way of knowing that surveillance activities do not impede civil liberties. If government actions remain classified under national security, there is no way to protect against the loss of privacy. Without the ability to check this growing power, the United States is under the constant threat of developing into a police state.