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The Rule of Law versus the NSA

alexanderIn the wake of New Jersey Governor Chris Christie’s traffic scandal, in which Christie’s aides were punishing a New Jersey mayor for not loyally supporting Christie’s reelection bid, critics were suggesting how dangerous it would be to have Christie in charge of the NSA. Imagine what he could do, people suggested, with all that personal information with which he could punish people who didn’t fall into line.

The notion is that Americans should only elect or appoint people who can be trusted to exercise this type of power wisely, prudently, and with the best of intentions, such as “keeping us safe.”

There are at least two big problems, however, with that sort of thinking.

One, when a system depends on trusting public officials with the exercise of totalitarian powers, that is the opposite of a free society. A free society necessarily is based on a governmental system in which the government does not wield totalitarian powers.

This is the difference between what is known as the rule of law versus the rule of men. The free society is based on the former. An unfree society is based on the latter.

For example, consider the type of system that our American ancestors devised, one based on the rule of law. Under that system, the government was prohibited from doing such things as spying on people in general, breaking into their homes and offices, and peering into their personal effects. 

The only way that the government could legally target someone for searching into his personal life was by presenting evidence to a judge that indicated that the person was involved in illegal conduct. If the judge concluded that the evidence was sufficient, he would issue a warrant specifically describing the place to be searched and the items being searched for.

That’s, in fact, the system that we still have at the state level. Under the U.S. Constitution and state constitutions, the cops are prohibited from spying on and searching everyone for the sake of ferretting out the small percentage of people committing crimes. Instead, they must wait until they secure evidence establishing “probable cause,” present it to a judge, and secure a warrant before they can target a specific person.

That’s a system based on the rule of law.

The advent of the national-security state after World War II fundamentally changed America’s constitutional structure. As we all now know, the NSA wields the power to spy on everyone and search into their personal affairs without any probable cause and without a specific warrant naming the person, the place, and the specific items being searched for. The idea is that in order to “keep us safe,” the government must spy on everyone to catch the small minority of people who are committing terrorist attacks.

That’s a system based on the rule of men. It necessarily depends on trusting people with omnipotent power.

That raises the second reason why such a system is problematic. Inevitably, in a system based on trust, the power that is being exercised is going to be abused.

Most everyone, for example, is familiar with what the FBI did with the secret information that it illegally acquired about Martin Luther King. It used embarrassing aspects of his personal life to blackmail him with the hope that he would commit suicide. The message that the FBI implicitly sent King was: Kill yourself or we’ll reveal what we have learned about you through our assets in the press.

It was no different with Ernest Hemingway. During the last part of his life, Hemingway repeatedly told people that the FBI was following him, monitoring him, spying on him, and delving into his personal affairs. Suffering severe paranoia, Hemingway entered psychiatric hospitals, where he received shock treatments. Beset by severe depression and paranoia, Hemingway finally ended his life at age 50 with a shotgun.

All the while, the FBI sat silently by. Decades later, however, the FBI, in response to a Freedom of Information request, released long-secret files that showed that the FBI had in fact placed Hemingway under extensive surveillance. See “Hemingway, Hounded by the Feds” by A.E. Hotchner.

Why did they do that? For the same reason that they put King under surveillance. The FBI was convinced that Hemingway, like King, was a communist. Why did that matter? Because the FBI, like the rest of the national-security state, was convinced that the communists were coming to get us and, alternatively, that communism was like an infection that could infect the minds of every American, sort of like what happens to zombies.

That’s, of course, the irony of the situation. While Hemingway was suffering from a rational case of paranoia, the government’s surveillance of him was based on an even more severe case of paranoia — one in which national-security state officials were convinced that communists were everyone — in Congress, in Hollywood, in the army, and under everyone’s bed — and that they were going to take over America and end up running the IRS, the Interstate Highway System, and the public schools.

What these people did to King and Hemingway might well have been based on a sincere case of national-security paranoia, one in which they might have had the purest of intentions — to keep America safe from the communists. But it only goes to show why no one can be trusted with omnipotent power. Oftentimes people will good intentions and great zeal can be bigger threats to freedom than those who have evil motives.

Let’s reject the notion of getting “good” people into public office with the power to spy on us. Let’s reject the rule of men. Let’s restore the rule of law to our nation. Let’s achieve a free society. Let’s abolish, not reform, the NSA and, for that matter, the rest of the national-security state that has done so much damage to people and to our constitutional order.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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