On Thursday the former National Security Agency official and whistle-blower William E. Binney and I will debate Stewart A. Baker, a former general counsel for the NSA, P.J. Crowley, a former State Department spokesman, and the media pundit Jeffrey Toobin. The debate, at Oxford University, will center on whether Edward Snowden’s leaks helped or harmed the public good. The proposition asks: “Is Edward Snowden a Hero?” But, on a deeper level, the debate will revolve around our nation’s loss of liberty.
The government officials who, along with their courtiers in the press, castigate Snowden insist that congressional and judicial oversight, the right to privacy, the rule of law, freedom of the press and the right to express dissent remain inviolate. They use the old words and the old phrases, old laws and old constitutional guarantees to give our corporate totalitarianism a democratic veneer. They insist that the system works. They tell us we are still protected by the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Yet the promise of that sentence in the Bill of Rights is pitted against the fact that every telephone call we make, every email or text we send or receive, every website we visit and many of our travels are tracked, recorded and stored in government computers. The Fourth Amendment was written in 1789 in direct response to the arbitrary and unchecked search powers that the British had exercised through general warrants called writs of assistance, which played a significant part in fomenting the American Revolution. A technical system of surveillance designed to monitor those considered to be a danger to the state has, in the words of Binney, been “turned against you.”
We live in what the German political scientist Ernst Fraenkel called “the dual state.” Totalitarian states are always dual states. In the dual state civil liberties are abolished in the name of national security. The political sphere becomes a vacuum “as far as the law is concerned,” Fraenkel wrote. There is no legal check on power. Official bodies operate with impunity outside the law. In the dual state the government can convict citizens on secret evidence in secret courts. It can strip citizens of due process and detain, torture or assassinate them, serving as judge, jury and executioner. It rules according to its own arbitrary whims and prerogatives. The outward forms of democratic participation—voting, competing political parties, judicial oversight and legislation—are hollow, political stagecraft. Fraenkel called those who wield this unchecked power over the citizenry “the prerogative state.”