Some argue we don’t have a justice system at all. Outcomes of the law, they say, are often not about what’s best for all involved, or even what’s fair and reasonable under the circumstances. Instead, what we have is a “legal” system. Any behavior is acceptable, as long as it comports with the letter of the law.
Nowhere is that more clear than in the recent debate over internet surveillance.
I’ve posted before about Edward Snowden’s revelations regarding the NSA and how that has freshened the debate over the government’s ability to intrude into the lives of innocent citizens around the world. That debate doesn’t hinge on justice in any way, not that the concept has even entered the conversation as far as I know. Instead, it turns on the “legality” of surveillance.
The difference may seem slight, but it’s actually quite profound.
In the wake of 9/11, citizens, legislators, law enforcers, journalists and others were willing to say or do almost anything to prevent the next terrorist tragedy. That impulse was absolutely reasonable and justified under the circumstances, and it could have lead to important reforms that would have both protected society from terrorism and also from injustice.
Instead, the government chose to push justice aside and establish a legal framework that allowed for the mass surveillance of nearly everyone around the world who uses the internet to communicate.
Now that the workings of that system have come to light, pundits and politicians have lined up to claim that these government programs are completely legal and fully within our nation’s laws.
The reason that’s so, of course, is because many of these laws were passed and adjudicated in secret, sometimes without debate (or at least not fully informed debate) about how those laws fit alongside Constitutional protections or any of the other existing legal theories that protect the civil liberties of individual citizens.
The problem, then, is not strictly whether or not these surveillance programs are legal – they may well be. In a free society, weight must also be given to whether they are just.
Is it fair and reasonable for an innocent individual’s social network to be scoured by the government on the off chance that there’s a distant connection to someone labelled an enemy of the state in a far flung corner of the world?
Is it fair and reasonable for the government to have access to intimate communications between family members regarding their fears about the care of an aging parent, whether to get treatment for a sexual disorder, or how to deal with a suicidal child?
Is it fair and reasonable for the government to know details of the failings, addictions, losses, and embarrassments of its citizens?
I would argue that while our government may have made all of these encroachments legal (and possibly more), none of them are either fair or reasonable. They are unjust intrusions in a free society.
Consider that the FBI is now looking to tap into the same electronic networks as the NSA, or that other federal law enforcement agencies have already secretly done so and are hiding that source of investigative information from accused persons, or that small companies are forced out of business because they won’t comply with secret demands by the government to somehow access their systems.
Recognize also that journalists seeking to shed light on any aspect of these secretive, legally-questionable practices are being pressured and intimated with threats of prosecution for simply doing their work, which, lest we forget, is still protected by our Constitution.
We have to acknowledge that we are not operating under a justice model at all as it turns out. This is strict legalism, pure and simple, and I would argue it’s corrosive to our country’s values of freedom, liberty, and the individual pursuit of happiness.
Fifty or 100 years from now, I predict our children’s children will look back on this era with astonishment. They will look back at a government and its people who chose to completely break down the bonds of trust between them in exchange for the tiniest additional increment of safety. They will look back at a society that distorted the letter of the law to such an extreme that it completely outstripped any hint of justice.
They will look back, I fear, at a country that got frightened and lost its way.
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