It’s Not About Snowden -- It’s About Madison

The jig is up for anyone who argues that the Constitution doesn't cover metadata.

This is the text of the Fourth Amendment to the Constitution of the United States: "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."

It is impossible to read this language and then conclude that the National Security Agency (NSA) has not violated this amendment willfully and wantonly. That U.S. District Judge Richard Leon finally declared that the agency's mass collection of metadata likely violates the Constitution should therefore not be surprising. What should be surprising is that many senior U.S. government officials including the constitutional scholar who is president of the United States could know of this behavior, sanction it, and enable it to go on unchecked.

Judge Leon demonstrated outrage, understatement, and a degree of flair in his decision -- which seems likely to be appealed. In his opinion, he asserted that the principal author of the U.S. Constitution and Bill of Rights James Madison would be "aghast" at the sweeping nature of the NSA programs targeting the personal data of U.S. citizens and that it was "indiscriminatory" and "arbitrary." Leon's flair and perhaps unintentional understatement came into play when he described the programs as "almost Orwellian." I would say these programs are Orwellian to the core, not Orwell-lite but Orwell-writ-large, precisely the kind of violations of personal privacy and human dignity that led the author to write 1984. These programs are Orwellian to the core, not Orwell-lite but Orwell-writ-large, precisely the kind of violations of personal privacy and human dignity that led the author to write 1984. In any event, the reference to Orwell and by extension to "Big Brother" was a welcome one, driving home the nature of society-wide violation of privacy in terms that would resonate far beyond the Beltway.

While the appellate process will take time, the Obama administration should accelerate its efforts to rein in the NSA as well as its overreaching and damaging international surveillance that has also violated the basic rights of not only Americans abroad but of allies and innocents around the planet. It is time for the team in the White House and the NSA to stop defending the indefensible. To restore trust overseas will require more than the soothing murmurs of high-level bilateral meetings and phone calls that the United States has been offering as a weak palliative to its violations around the world.

Internationally and at home, one strong step that the president should take that is long overdue is to remove Gen. Keith Alexander from his position atop the NSA. He is no doubt a good man doing work on behalf of the American people as best he can. But he has lost sight of the line between the threats terrorists may pose to Americans and those posed by an intrusive government. Whether or not he has misled Congress, he has made bad judgment calls and is now a symbol of the surveillance state, the unwitting face of Big Brother come to life. It is also time for the Obama team and the intelligence community to accept the core idea offered Monday by this Bush-appointed federal judge: The jig should be up for those who would argue that the Constitution does not cover metadata or other electronic forms of information it did not anticipate. Don't wait for appeals to make their way through the judiciary to do what is right.

The Fourth Amendment clearly refers to "persons, houses, papers and effects" in order to be comprehensive about all items in an individual's possession to which an intrusive government might seek access. Metadata records information about a person's activities that can actually be more telling (and personal) than other forms of information that might have been reasonably obtained by the government in the past -- with whom they are associating and when, for example. It is precisely the kind of information once contained in "papers." That metadata is being searched wholesale or warehoused so the government might later search it and that the vast majority of such collection is taking place without a warrant is further indictment of the legality of the program.

Leon went on to condemn the NSA's metadata warehousing programs because he had no evidence of their effectiveness at preventing terrorist attacks. While this strengthens his point about the ill-considered nature of these surveillance efforts, it should not be relevant. Even if the information gathered had stopped a major attack, it should not have been gathered absent a warrant "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

There is no justification for the systematic abuses by the NSA or for the defense of those abuses by the president and his team. In America's panicked overreaction to the events of 9/11 and the consequent fear-mongering that became the stock in trade of both our political leaders and the Beltway bandit class who sought to line their pockets with overpriced programs based on absurd risk assumptions, the U.S. government has committed the most grotesque violation of the principles on which it was founded since its acceptance of the mechanisms of racism and sexism of the past century (since full rights were accorded citizens who were themselves overlooked and underserved by the Founders).

In the months and years since the 2001 attacks, we bought into the notion that since a small group of people had inflicted great damage to us that any small group of people or even an individual might do likewise or worse and therefore that all people were potentially enemies against which we must protect ourselves. We went from the bipolar, good vs. evil perceptions and realities of the Cold War to something new and more odious. It was not just us against a much bigger "them" located not just within the Soviet Union or among its allies but potentially everywhere. It was more than that. It was a few "patriots" at the center of our government against potential threats within and without the United States, a few bureaucrats and politicians super-empowered by the fear they engendered in their constituents to set aside our Constitution, international law, and our values.

This is precisely the kind of demagogically driven pernicious power grab that led Madison to push for passage of the Bill of Rights. He understood from firsthand experience the risks and costs of carefully rationalized government over-reach. He wrote of it often. His words uncomfortably resonate with the events of our era.

"If tyranny and oppression come to this land it will be in the guise of fighting a foreign enemy."

"The means of defence against foreign danger have been always the instruments of tyranny at home."

"No nation could preserve its freedom in the midst of continual warfare."

"All men having power ought to be distrusted to a certain degree."

"I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations."

This last Madison quotation was offered up at an event Foreign Policy held last week honoring our 100 Leading Global Thinkers by one of those on our list, Edward Snowden. His remarks, delivered by another of our leading thinkers, attorney Jesselyn Radack, were a bit self-congratulatory. He took time to acknowledge his own sacrifice in a way that should best have been left to others. He certainly did not address the moral ambiguity of his actions. (It is undeniably true that the means by which he gathered and disseminated the documents he collected from the U.S. government were themselves a violation of the law and of a trust that had been placed in him.)

That said, it is fair to ask if he had not done what he did, whether this week's court judgment would ever have been handed down. The absence of such a case would not, of course, have made the acts of the government any less a violation. Rather, they would have just continued because there is absolutely no evidence that any serious effort was being made by any of our elected advocates and overseers in the legislative, executive, or judicial branches to roll back these invasive, unconstitutional programs prior to Snowden's leaks.

Means aside, he therefore did the United States and the world a great service even as he did damage to others within the intelligence community and to material U.S. national interests. We have to be able to get our brains around both the good and the bad of his acts in order to understand how well-intentioned intelligence efforts made by good men and women can become too caught up in the excesses of an era and do very bad things.

Also disturbing was the outcome of a discussion at the Transformational Trends conference Foreign Policy sponsored last week just hours before the Snowden comments were read; a poll of several hundred attendees were asked what the most likely consequence of the Snowden revelations would be. The leading answer selected by them was that we would grow more accustomed to government programs like those revealed to have been violating our privacy.

It was a shockingly complacent response, perhaps what the average American might fear from a group of Washington insiders. We'll get used to this, the audience suggested. In other words, the Snowden revelations would not be, in their mind, the end of an era of abuses but rather were just a harbinger of things to come.

Judge Leon put a stake in the ground this week for an alternative view. But it is clear that America has yet to come to a decision about these revelations. It is not, however, a choice about whether one is for or against Snowden. Quite the contrary, as Snowden wrote to our group, it is really a choice about whether this generation stands for or against Madison, the Constitution, and the view of the rights of men and women and the limitations that ought to be placed on government power that he and the other Founders risked their lives to advocate.

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David Rothkopf

Dysfunction Junction

Public officials from Beijing to D.C. are failing to rise to the world's challenges. That's where FP's Global Thinkers come in.

If you were to ask a typical American voter for a list of creative, intellectually gifted public officials, he or she would probably look at you as though you had just asked for the names of the world's most eloquent giraffes -- and with good reason. The 113th Congress is on pace to produce less legislation than any since World War II, and President Barack Obama has watched his signature health-care initiative founder, thanks to mismanagement and woeful execution. A distemper is in the air, and given the recent performance of the U.S. government on matters domestic and international, its origins are understandable.

What might surprise many disgruntled Americans is the degree to which their counterparts in Europe, China, India, the Middle East, Africa, and Latin America are dissatisfied with their governments. In fact, few things unite the world today like the belief that public officials are failing to rise to the challenges of our time -- too crooked, too fractious, or too self-interested to attend to the needs of those they are supposed to serve.

As Wang Qishan, one of the Global Thinkers profiled in this issue, is demonstrating, corruption is so deeply embedded in the way China works that it is not merely a threat to the system -- it is the system. India's federal government, always unwieldy and difficult to manage, has really spluttered of late, and pending elections suggest that the country may be on the brink of greater ethnic tension, deeper internal divisions, and more dangerous confrontations with its neighbors. The country's state governments, meanwhile, are so corrupt that they can't pick up the slack left in the line by New Delhi. (In an interesting twist, India seems to have switched places with Japan, which five years ago was utterly paralyzed but today is surging forward, to the credit of another of our Global Thinkers, Prime Minister Shinzo Abe.)

In the European Union, the financial crisis has revealed that not only have many EU governments failed the most basic tests of fiscal management (and political courage), but that the entire continent is knit together by a half-baked system presided over by a quasi-government apparatus that was designed to be weak and has lived up to that goal to a dangerous degree. Of course, if you lived in Libya, Afghanistan, Pakistan, or much of Africa -- to say nothing of Syria -- you would be looking enviously to the bureaucracy in Brussels, whose sclerosis is far more desirable than the fractious coalitions of thugs, leavened by small coteries of the well-meaning, that just barely control their capitals.

This widespread dysfunction is just one of the reasons that this year's list of leading Global Thinkers ventures farther outside the political sphere than in the past. Another is that we have tried to focus on individuals whose ideas have been translated into actions that, in turn, have impacted millions of people across borders. And even though we are a publication whose last name is "policy," it doesn't take much scrutiny to recognize that the majority of big ideas that are changing the world are not coming from government officials.

For example, the most transformational development of the past quarter-century is likely not the fall of the Soviet Union or the attacks of 9/11, but rather the remarkable proliferation of cell phones -- from a mere 12 million in 1990 to some 7 billion today -- that has knitted the world together in unprecedented ways. Of course, the information revolution, of which that expansion is a part, is why our first cluster of Global Thinkers this year addresses the emergence of the surveillance state (an anomalous and disconcerting example of American competence). Some readers may loathe a few of the individuals in this group, but the broad division over the question of who deserves condemnation and who deserves praise shows the urgency of the debate that has been triggered.

The point is that a world facing extraordinary challenges -- from a vastly more complex and interconnected economy to growing inequality, from global warming to the proliferation of weapons of mass destruction, from resource scarcity to massive demographic shifts, from spreading extremism to the emergence of the surveillance state -- is saddled with governments that are not rising to the moment. Indeed, there is a global crisis of trust that raises real questions about who can and will act on our behalf.

Of course, this is not the first time that the world has been cursed with bad leaders, corrupt systems, inefficient bureaucracies, or mendacious and weak-minded politicians. Indeed, many of the darkest eras in the story of civilization have featured such characteristics and characters. But today is a moment of special challenges in this regard. It is hard to think of a period in the past half-century when the great powers and the great emerging powers faced such challenges so broadly.

In the past, when the world has struggled with political delinquency, other voices have emerged with ideas that were capable of producing the changes that were needed. Some were scientists or academics. Some were writers or commentators. Some were military or religious leaders. Some were businesspeople. The search for such people is precisely what FP's list of Global Thinkers is all about.

The list could not hope to be comprehensive. And to be honest about the biggest ideas swirling around the world today, not everyone on our list is advocating notions that are actually for the better. But most people on this list are not only trying to find a better way, solve a critical problem, or present a vital question in a new light, but they are actually doing it -- and producing results.

Given the widespread misfires we are seeing from some of the institutions we have created to be the engines of ideas and to translate ideas into action, we hope you will find a look at our list at least somewhat comforting. Or better yet, that you will find your own inspiration from those among our Global Thinkers who are the most inspired themselves.

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