Two recent stories have made for an interesting juxtaposition. First, the map of America’s intelligence underworld had some important contours filled in last Sunday with the New York Times’ report on the secret body of law that it called “almost a parallel Supreme Court.” Then on Wednesday a Quinnipiac poll showed a substantial increase in support of civil liberties. Taken together they might suggest a new dynamic in how the federal government relates to Americans on these issues.
Government has historically had free rein based on a general public ignorance of the policies; it looks like going forward those policies will exist in a cloud of popular disapproval. Such opposition puts the continued presence of the surveillance state in a new light: Following the Constitution on civil liberties and human rights has to this point basically been on the honor system. We don’t have any mechanism that springs to life when there are credible allegations of wrongdoing in these areas; it’s up to the leaders in the relevant institutions to have the will to follow through on their obligations. They will not face any sanction if they fail to, though.
For instance, look at the Convention Against Torture. Congress passed it, Ronald Reagan signed it, and under the Constitution it is the law of the land. Yet there have been credible allegations of torture for at least a decade now. No action has been taken. We like to pretend the Constitution has some sort of compulsion or force to it, but in the end it is only relevant to the extent it is willingly followed. Ultimately, all that matters is what those sworn to defending the Constitution decide to enforce. If officials responsible for investigating torture don’t feel like investigating torture, it won’t be – Constitution be damned.
Violations of civil liberties have been a little trickier for the federal government to dismiss, but so far so good. We now have an established precedent that those who are unjustly spied on cannot show standing to sue – even when they can. That technicality disposed of, the NSA and other intelligence agencies have carte blanche to snoop to their hearts’ content.
Now that its scope is becoming clearer, though, public opinion is turning pretty decisively against it. That is not necessarily a problem for the government. As with torture, it is largely on the honor system. The visible legal system has established its Helleresque logic of no one having any standing, the shadow legal system has its rubber stamp pretty much set up for drive-thru approval, and a whole infrastructure is in place according to a novel understanding of what law is. (We’ve come a long way from the “tricky legalisms adopted in classified memos” that Jane Mayer wrote about in The Dark Side.)
This is the age of impunity. If you manage to get to a certain critical level of importance, you are above the law. It’s true in the political world, as with torture and spying, and it’s true in the financial world as well. In the late eighties, the Savings and Loan crisis – which was of a far smaller scale than the 2008 meltdown – produced 1,100 criminal prosecutions and 839 convictions. Yet the most recent crisis produced zero of either. (And incidentally, as we approach the five year anniversary of the meltdown in October, keep in mind that statutes of limitations on what happened will begin to expire.)
Officials have not had to follow much more than their own moral compass in any of these matters. It isn’t as though anyone in Congress will go to jail for failing to provide robust oversight. And it’s not as though that body’s approval rating could go much lower. What’s one more failure at this point?
But the creation of a shadow government is not going over well, and that widespread public disapproval is a new complication. Many were initially cowed with ticking time bomb scenarios and other fearmongering into acquiescing to an awful lot immediately after 9/11. The populace seems to be getting its bearings back, though.
Leaders could just say damn the torpedoes, full speed ahead – and that is probably the most likely outcome at the moment. In which case, we will have begun something of an experiment: seeing just how contemptuous of the citizenry elected officials can be (and how corrosively cynical citizens can in turn become towards those representatives) and still retain the consent of the governed.
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