Government Surveillance: A Sartre Moment

Louis Brandeis

Samuel Warren

Hendrick Herzberg

Jill Lepore

Huis Clos ("No Exit" or "Closed Doors") is one of those rare works which made the agonizing work of qualifying in French in college almost worthwhile.  Sartre's thesis, as elaborated by this excruciating, funny and mesmerizing play is, simply put: "Hell is other people."
 The obverse of that coin is nirvana is also other people. You can read alone in your room, camp in the wilderness, paddle down the river alone, but essentially, like D.H. Lawrence's caretaker, Mellors, living alone  in his stone hut, in the woods, eventually, you need other people, (in his case, Lady Chatterly.)

And so it is in the debate about privacy, which is, in itself, not the most intensely interesting or important debate extant in our public discourse today, but look at the people it has brought to surface, and listen to the music pouring forth from their souls.

Jill LePore, writing in this week's New Yorker, traces the intellectual history of the notion of a legal guarantee of privacy back to the famous paper by Samuel Warren and Louis Brandeis, "The Right to Privacy."  Brandeis, of course, would later expand his thinking in his erudite dissent in Olmstead v United States, saying Olmstead's right to be left alone had been violated by the wire tap of his telephone which led to his conviction for boot legging illegal alcohol.  Brandeis argued that before our Constitution prohibited it, the government could break into a citizen's home without warrant to obtain incriminating evidence, could obtain incriminating evidence by torture and this amounted to, among other things, espionage by our government on our citizens. It constituted forced testimony of self incrimination.

Of course, the response to this intrusion has been largely determined by what other feelings the speaker has about the government: Rush Limbaugh said the NSA spying program is just another example of Mr. Obama's "totalitarian nature," a nature he did not see in the same actions and programs when they were directed by Mr. George W. Bush.

Professor LePore sums up the quandary: "This has led, in our own time, to the paradox of an American culture obsessed, at once, with being seen and with being hidden, a world in which the only thing more cherished than privacy is publicity. In this world, we chronicle our lives on Facebook while demanding the latest and best form of privacy protection--ciphers of numbers and letters--so that no one can violate the selves we have so entirely contrived to expose."

Mad Dog spent an entire blog trying to say what Dr. LePore has said in a single paragraph.

On NPR today,  the history of the program subsumed by the NSA was explored. The CIA had demanded of the phone companies that as they switched to digital technology they not employ technology which would make it impossible for the government to tap it. The companies agreed, despite the substantial costs involved in making phone records accessible to the government, but insisted the data be obtained with warrants.  The conversations themselves were of little interest to the government, but the patterns of calls were of great interest: If a caller orders surveillance equipment and information about airports and the World Trade Center and makes phone calls to Pakistan, Berlin, Qatar and Saudia Arabia, then flies to Somalia and then to New York, the NSA wants to be able to connect all that and to track that caller.

 In fact, just such a program was being developed at an Army base in suburban Washington, D.C. prior to 9/11 and the analysts there were on the trail of the plotters when they were shut down by Army lawyers, who saw Constitutional issues as violations of the Fourth Amendment.

The main question, of course is this:  If you knew allowing the government to collect this data for millions of Americans and non citizens would have prevented the attack on the World Trade Center, would thwart future attacks, would you still say, "No, you cannot gather this data" or would you say, well, we need to balance the loss of a sense of inviolability against the loss of life and treasure?

Mr. Obama said, "This war, like all wars, must end...We must define the nature and scope of this struggle, or else it will define us...difficult questions about the balance we strike between our interests in security and our values of privacy."

The best thing about this argument, of course, is the pleasure of watching good minds at work.

Of course, the answers are far simpler than the subtly and complexity of the argument:   You do not need a Harvard degree to know the answer here. You have only to have watched the 5 seasons of "The Wire" (yes, there it is again) to understand how that balance must be struck.