It’s hardly surprising to learn that after Congress demonstrated in 2008 that there were no penalties for overstepping the bounds of domestic spying, the NSA continued to overstep the bounds of domestic spying. In the summer of 2008, Congress passed the FISA Act, which immunized telecom carriers for their past violations of privacy, and ex post facto legalized some of the illegal (and probably unconstitutional) spying practices of the Bush Administration. The junior senator from Illinois, Barack Obama, who had been a staunch opponent to an expansion of domestic spying, voted for it enthusiastically.
This act created what some might call a perverse incentive. Since Congress demonstrated that the only penalty for unconstitutional surveillance is to have it excused by post hoc legislation, the NSA has since felt as though they were free to do whatever they want, probably accurately. Including spying on an unnamed member of Congress. I don’t see how we can claim to be a nation under the rule of law when our government excuses unlawful monitoring of legislators (and I’ll bet I know which party this Congressman belonged to). It is perhaps unsurprising that President Obama is so unwilling to abandon the radical executive power seizures of George W. Bush, since it is exceedingly rare for any power-holder to give up their power unilaterally. But it is profoundly disappointing.
The danger of a surveillance state is that once it has been established, it can be turned on anyone. When Republicans accepted Bush’s idea that the state should have unlimited impunity to spy on and detain anyone they wanted, they put a lot of faith in the basic goodness of our government. The simple fact is that right now, the government has the power to institute a Soviet-style crackdown if it so chose. Within the bounds of the existing legal regime, it would be perfectly within the legal rights of Obama (or Bush, previously) to start throwing political opponents in secret prisons without trials. Now, I trust Obama, and I doubt there are many American politicians who would abuse that power so grossly. But we shouldn’t have to trust our leaders in order to feel safe from our government.
The fact is that the potential for executive tyranny generally leads to executive tyranny. In the Roman Republic, the consul could claim powers of dictatorship in a national emergency. Cincinnatus took the dictatorship and bravely saved Rome, and then peacefully surrendered his powers to return to his farm. Julius Caesar, needless to say, did not. It is frankly unbelievable to expect that we could extend unlimited potential powers to the executive and they would not be abused. While America is exceptional, it stretches the limits of credulity to think that we’re that exceptional.