Let History Judge

By David K. Shipler

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

                                    --James Madison

            In the Revolution of 2016, alienated Americans have set the stage for a hard lesson in how democracy can be used to disable democracy. It would not happen at once, but as gradually as if the constitutional body were afflicted by an autoimmune disease. The curing power of the people’s voice would be turned against itself. The strong hand at the top, so fervently desired by the forgotten and ignored, would evolve into a counter-revolution of authoritarian demagoguery, which even a tradition of pluralism could not withstand. This is the gloomiest scenario.

            There is another scenario, however. It envisions a successful test of the ingenious American system, imagined and created to separate, check, and limit the power to reign and abuse. The Constitution restrains and holds. The president’s autocratic impulses are shackled to the rule of law.

            Nothing in Donald Trump’s pronouncements, policies, and behavior so far suggests that he grasps or accepts the constraints of the Framers’ inspired concepts. He fired up masses of aggrieved citizens by promising them decrees, not proposals. He talked as if he could do whatever suited him, as if no legislative branch existed, no courts stood to thwart his whims. He has recognized no principle of protecting minority interests. He has nurtured a cult of personality more suitable to a dictatorship than a democracy.

            Therefore, it is reasonable to expect in him a president who will push far past the boundaries of his constitutional prerogatives by trying to politicize law enforcement and the judiciary until they are mere shadows of justice. It is logical to expect a president who will insult and dismiss citizens along racial, gender, and religious lines, as he did during his campaign, and continue to give license to the hate-mongers among us. It is likely that he will use the bully pulpit of the presidency to divide and diminish this once-great nation, and even to bring dissidents to subservience.

Surveillance: A Cautionary Note

By David K. Shipler

            In the rush after the Paris attacks to step up surveillance, the usual arguments are being heard on one side about violations of civil liberties, and, on the other, about obstacles to monitoring because of what CIA director John Brennan derides as “hand-wringing” over government intrusion. But there is a less visible problem, often mentioned by former intelligence officials: Excessive, unfocused surveillance has produced floods of information beyond what the professionals can digest and analyze.

            At an illuminating panel in Washington two months ago, three former officials of the National Security Agency—Thomas Drake, William Binney, and J. Kirk Wiebe—made precisely that point, and if you talk to others who have been in the business, many of them will tell you the same thing. The petabytes of data that have been vacuumed up almost indiscriminately since 9/11 are stored untranslated, unread, and unsifted in digital files, well off the radar of the agents who are charged with spotting radicals before they commit the next atrocity.

            The American Civil Liberties Union, whose overriding goal is to protect constitutional rights, came up with the perfect metaphor after the Patriot Act diluted the Fourth Amendment’s protections in 2001: You don’t find a needle in a haystack by increasing the size of the haystack. Yet expanding the haystack is what was done, and is what is now being proposed.

Surveillance: Edward Snowden's Wishful Thinking

By David K. Shipler

            To risk all by being a whistleblower, you have to believe deeply in your society’s capacity for self-correction, and Edward Snowden—after periods of doubt—is a believer, it seems. Last week he hailed “the power of an informed public” in driving Congress to make modest trims in the National Security Agency’s authority to collect data on Americans’ electronic communications. This is the way an open democracy is supposed to work: expose the wrongdoing and provoke reform.

But before we celebrate with embarrassing rhapsodies, let’s remember how far the United States has to go. The 9/11 trauma has not yet healed, and the post-traumatic security measures—some sensible, others excessive—have compromised the Fourth Amendment’s guarantee of the people’s right “to be secure in their persons, houses, papers, and effects.” Many of the extreme methods of intrusion remain intact. Some have proved worse than useless, overloading intelligence professionals with terabytes of distracting information that’s hard to search and sift for the ominous patterns of incipient terrorism.

So there are both practical and ideological reasons to abandon the excesses, yet they seem likely to stay largely in place until several conditions develop.

If earlier spasms of anxiety in American history are any guide, violations of constitutional rights in the interest of national security come to an end when, a) they are so egregious that their disclosure inflames the public; b) the perceived threat diminishes; and/or c) courts find the measures illegal or unconstitutional. Early signs of each of these can be seen, but only as slight beginnings of what may become significant trends.

Will Obama the Constitutional Lawyer Please Stand Up?

By David K. Shipler
     Published in The Nation, issue of Feb. 11, 2013
There’s something about Barack Obama that induces

Americans to imagine what they cannot see. The right

envisions a vile socialist, while many on the left picture

an inspired liberal, politically restrained in his first term

but now free to pursue his true beliefs.

No hard evidence exists to sustain either view. Obama

behaves like a centrist who leans tentatively left on certain

social programs but boldly right on military force and civil

liberties. His supporters, who have watched him duplicate and

codify some of the Bush administration’s most damaging civil

liberties violations, are now reduced to wishful thinking that an

authentic Obama will soon step forward and return the country

to the constitutional footing that was abandoned after 9/11.