Big Brother is in the news, and he’s created an uproar.
A leaked court order, published Wednesday, was frightening in its scope. The Foreign Intelligence Surveillance Court ordered Verizon to provide the National Security Agency with data relating to every phone call originating in the United States. The order did not include the content of the conversations, but included data such as the telephone numbers and the length of the calls.
Judging from the immediate and vocal response, most Americans find the order repugnant.
In a representative democracy, therefore, it is worth understanding how it came about. If the people agree the government should not have such expansive surveillance powers, why does it have them?
While blaming President Barack Obama is appropriate, it is too easy. The leaked order is a product of every branch of the U.S. government.
The purpose of the Foreign Intelligence Surveillance Act, when passed in 1978, was to protect Americans from foreign powers. The Patriot Act, passed in the wake of the 2001 terrorist attacks, dramatically broadened FISA. Its purpose is to identify terrorists before they inflict harm.
Congress has not repealed the laws; indeed, several amendments have strengthened them.
The U.S. Supreme Court upheld their constitutionality.
A federal district judge — one appointed by former President Ronald Reagan — signed the order. The judge who signed the order is not oblivious to constitutional rights. Indeed, in 2011 he signed an order striking down the Affordable Care Act.
FBI officials — a part of the executive branch — requested the order.
Nor are such expansive orders a product of just one party. Former President George W. Bush was aggressive in his use of the powers provided by the Patriot Act. The leaked order, according to reports, is a renewal of one first issued under Bush in 2006.
The question that must be asked, then, is why so many different officials persist in a practice that the American public claims to hate.
Politicians have unique expertise when it comes to gauging public views. They recognize popular sentiment can change quickly, and they are constantly wary of being on the wrong side of it.
The fact that two very different presidents, multiple Congresses and numerous judges have supported the broad powers of FISA and the Patriot Act tells us something not just about them, but about us.
These experts in public opinion believe our anger about the leaked order is skin deep. They believe a successful terrorist attack — especially one that could be attributed to a president’s failure to use counter-terrorism powers at his disposal, or a political party’s erosion of those powers, or a judge’s refusal to authorize them — would quickly reverse political sentiment.
Would heroes of constitutional liberty become villains in the wake of terrorist-inflicted carnage?
Americans value privacy. They also value safety. If elected officials have arrived at a balance that unacceptably elevates safety over privacy, it is up to the public to convince them of the miscalculation.
The real test of public opinion, though, will not be in the next election. It will be after the next terrorist attack.