Finding a Place to Stand Up

One of the keys to the government’s ability to continue their surveillance operations as long as they have has been the asymmetric nature of the program. In some ways the program resembles a digital one-way mirror, with the internet being opaque to us and transparent to them. But we still do not know the exact outlines of the program.

We could try to speculate, but would have trouble confirming our guesses. Even some of the publicly revealed details may not be trustworthy due to contradictions among statements. That is to say, there’s always the possibility that the National Security Agency runs (at least) two sets of books.

Let’s assume that’s true, and let’s assume it’s true for the best of reasons, and that at some level it is authorized by our government for them to do so. It still makes the lives of those seeking truth harder if not impossible. It means they can show the correct books to the judge, and the case just goes away. And they can do that as long as they like. Because somehow national security becomes more important than the nation.

But we have seen that before. We’ve seen it in Kings’ fists crushing peasant revolts. We’ve seen it in civil wars.

When the principle rises up and crushes all other reason. That sort of usurpation of normalcy, it can be hard to return from that.

According to one set of books, we did come back, at least a little, in 2009. The new president looked and asked for changes. But then we hear that NSA is now and only now going to implement so-called two-man rule. And then only to try to stop whistleblowing, not to protect the integrity of their operations. These are supposed to be some of the most advanced databases on earth, and it doesn’t sound like they’re at all.

But to show standing, the organizations suing over the surveillance must show themselves to be targets, must show harm. And that’s just to get their foot in the door. They must also try to convince that the national security isn’t at stake in litigating a matter painted to be very delicate.

It seems that the courts are wary to intercede, to provide a check on this executive power. Likewise, the legislature does not seem very disposed to seek to reign it in.

What, then, are the people to do? Spoon sugar down with this bitter pill, numb themselves to the notion that our system has grown so unwieldy that the most they can hope for is an existence forever plagued by interference?

There are projects that attempt to recover the partition now apparently lost between private and public. And it is still too early to give up the thought that either the court cases or the legislature will proceed to restore a real check to power.

It’s even possible the NSA itself will grow very tired of interruptions to its mission to deal with questions and problems arising from its invasive programs, and will redesign them to avoid these problems. The two-man rule may be the first step in that direction.

Ultimately an overbroad system will be less functional (or even dysfunctional). The rational actors will find it in their own best interest to curtail the ability for abuse to take place.

But which will come first?