Snowden’s Unfinished Legacy
Why his legacy has yet to truly write itself
In a talk at Harvard Law School, Supreme Court Associate Justice Stephen Breyer conscicely summarized the “mechanistic” formula the Supreme Court uses to determine which cases it rules upon. Cases that appear before the Supreme Court have to pose a legal question with federal implications that different federal courts have inconsistently ruled on, with different overlapping opinions on essentially the same issue.
With the recent ruling of Richard J. Leon of Federal District Court for the District of Columbia that decried NSA surveillance programs as “almost Orwellian” and most likely violating the Constitution, and another ruling from Federal Judge William Pauley that declared the NSA programs essential on the war on terror, the path towards the Supreme Court is now clearer than ever. The Department of Justice is appealing Judge Leon’s anti-surveillance ruling, while the ACLU is appealing Judge Pauley’s pro-surveillance ruling.
The likelihood of yet another landmark Supreme Court case on par with New York Times Co. v. United States—-when the Supreme Court ruled that the New York Times could reveal the classified Pentagon Papers which bluntly laid out how the government had lied to the public about the Vietnam War—-has never been higher. Daniel Ellsberg has often been compared to Edward Snowden. He put it best when he boldly announced “there has been no more significant disclosure in the history of our country” than those of Edward Snowden—including his own leak of the Pentagon Papers. Now it is time for action to follow these words to truly carve out Edward Snowden’s legacy.
While President Obama has rejected most of the substantive findings of his own commission on the NSA, actions on par with those recommended by the Church Committee of 1975 may well be forced upon him if there is a ruling from the Supreme Court, and subsequent legislative action from Congress.
Is such a ruling even possible?
For the sake of simplicity, even if the justices themselves dislike it, let us consider the following rubric for dividing them for landmark cases such as this, where the justices will tend to split 5-4. Let us also assume that the Supreme Court will accept the duty of considering this case, which it likely will given the circumstances.
The liberal justices would consist of Associate Justices Kagan, Ginsburg, Breyer, and Sotomayor, all appointed by Democrat presidents Clinton and Obama.
The conservative justices would consist of Chief Justice Roberts appointed by Republican president George W. Bush, and Associate Justices Scalia, Kennedy, Thomas, and Alito, appointed by Republican presidents Reagan, George H.W. Bush, and George W. Bush.
The liberal justices voted as a bloc together in CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, ET AL. v. AMNESTY INTERNATIONAL USA ET AL. to try to challenge the constitutionality of warrantless wiretaps, and any rational soul should expect much the same from them in any future case.
Of the conservative justices, Roberts, given his tendency to hit some home-run majority rulings for his legacy of being a “by-the-rules” arbitrator—-the most notable case being his majority opinion upholding Obamacare—-and his pronouncement of privacy as being the paramount constitutional issue facing the Supreme Court, would be the most likely to deliver an opinion with the liberal justices. With that said, his previous defense and work on behalf of controversial Supreme Court nominee Bork—-whose originalist theory of the Constitution claimed a lack of basis for a constitutional right to privacy—-may indicate otherwise.
Justice Kennedy, the typical swing vote for landmark rulings, unfortunately cannot be counted on when it comes to privacy issues. His majority opinion on Skinner v. Railway Labor Executives enumerating that the government could violate the privacy rights of railway workers by subjecting them to drug tests due to a “special needs” exemption where the Fourth Amendment could be ignored—-if it was deemed to be in the overriding interest of public safety—-is the basis of the NSA’s metadata collection program.
Justice Alito subscribes to a mosaic theory of privacy that argues that a search is a collection of aggregated actions: so, while use of a GPS device to track a vehicle in one case may not be construed as a “search” under the Constitution, the long-term of use of said GPS device could be considered a “search”. This would seem rather favorable to Justice Alito’s tendency for a pro-privacy ruling, given what we know about the metadata collection capabilities of our phones, which can track our location within meters for months or years.
However, Justice Alito also shows a strong deference to executive power, and national security agencies, part of the reason why the second President Bush had him confirmed in the first place. While working for President Reagan’s Justice Department, he argued that the attorney general should be immune from prosecution for wiretapping Americans. Justice Thomas and Scalia agree with Justice Alito on this point: all three share an ideological bent that presupposes that the “national security agencies” know best for the nation’s security, and should therefore not be overly constrained. Justice Scalia also gets bonus points for calling a general constitutional right to privacy “blah, blah, blah, garbage.”
The votes might be there. It probably hinges on Justice Roberts, or maybe, just maybe, Justice Alito. Significant positive changes to how the American government deals with privacy issues could happen within a couple of years. Barring that, the discussion sparked from a transparent argument in an open court of law about privacy issues will bring much reason and thought on a topic that is crucial to all of us.
How crucial exactly?
We live in an age where privacy is almost quaint. How many of us would rather skip a few seconds in the registration process to link applications with all of the sensitive information we openly share about ourselves on social networks? For those among my generation, the millenials who will shape our future, the number is surprisingly high—-how else to explain the explosion of said registration tokens?
We have increasingly gotten used to sharing all aspects of our lives to others, even topics such as political affiliation, and rowdy parts of our social life, that were once considered sensitive. Those that we do not share, can be divined about us: researchers at Cambridge University were able to accurately predict the sexual orientation of individuals based on their Facebook likes. A slippery slope argument could see domains such as health information, and financial information compromised. In fact, the NSA has already done most of the work for us by allegedly monitoring, and even manipulating the financial system, and diluting encryption standards for financial transactions. It is the Brave New World where we have sacrificed everything for convenience and safety.
This is a scary world. The aforementioned Church Committee revealed a litany of excesses carried out in the name of security. Among these revelations were the following: the security agencies had intercepted, and opened hundreds of thousands of letters passing through the US Postal Service, used unknowing American and Canadian test subjects in torturous circumstances to test the concept of mind control in Project MKUltra, and intercepted the communications of prominent Vietnam peace activists, and political figures. The revelations led to the passing of the Foreign Intelligence Surveillance Act of 1978 which checked some of the powers of the NSA by requiring that it prove that its’ surveillance targets were, if they were American, operating for a “foreign power”. It also led Senator Church—-whom the committee is named after—-to announce that he “[knew] the capability that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return. ”
This technology has grown only more pervasive and intrusive over the years. With the NSA not denying that is has spied on members of Congress, and with directors of the NSA lying to Congress seemingly with impunity, what hope is there for the rest of America?
The open discussion that a Supreme Court case would being will shed much light on the one issue that will drive interaction between new technology, and old policy. A positive, privacy-affirming ruling would be a breath of fresh air, moving forward a range of protections that will be entrenched for untold future generations of Americans.
The present generation, having forgotten perhaps the excesses, and darkness of the past, will be protected nonetheless from the nation sinking towards that direction, or worse.
This is the legacy that can be written for Edward Snowden. Reasoned and peaceable dissent expressed regardless of real tangible danger for dissenters is the highest ideal to which one can aspire to: if significant action is to follow that dissent, it will forever define Edward Snowden’s legacy.
