HARTFORD, CT, September 19, 2013 – This year’s Constitution Day panel tackled subjects that have been very much in the news of late: government surveillance, national security, press leaks, and privacy rights in this era of technological wizardry and journalistic ambiguity.
The title of the program was “Treason or Patriotism? Official Secrets and the Constitution,” and the panel consisted of Adrienne Fulco, associate professor and director of the Public Policy and Law Program; Mark Silk, director of the Leonard Greenberg Center for the Study of Religion in Public Life and professor of religion; and Ronald Kiener, professor of religion.
In 2004, Congress mandated that all public schools and colleges and universities that receive government funds designate September 17 of each year as Constitution Day to better promote students’ understanding of the U.S. Constitution.
The subject of the panel discussion couldn’t have been more timely in light of recent disclosures that telephone providers and technology companies have been complicit in turning over citizens’ phone and computer records to the U.S. government; a U.S. Senate committee approving a bill that would offer protections to a broad array of journalists to protect their sources of information; the granting of asylum in Russia to Edward Snowden, an American computer specialist and former CIA employee who leaked top-secret U.S. and British government mass surveillance programs to the press; and the emergence of WikiLeaks, an international, online organization that has published secret information and news leaks from anonymous sources.
Silk, a former newspaper reporter, led off the Common Hour discussion with some historical perspective in connection with the news media and its ability to publish material that the government has declared critical to national security. The most heralded of cases involved the Pentagon Papers in which the U.S. government tried to use prior restraint in stopping The New York Times and The Washington Post from publishing stories asserting that then-President Lyndon Johnson had lied to the public and to Congress about this country’s involvement in the war in Southeast Asia.
The two papers argued that they had a First Amendment right to print the articles. Ultimately, the U.S. Supreme Court ruled, 6-3, that the government failed to meet the heavy burden of proof required for a prior restraint injunction. Although The Times won the case, Silk explained, the high court did not void the Espionage Act or give the press unlimited freedom to publish classified documents, especially when national security is at stake.
The issue re-emerged in 2010 when WikiLeaks made public certain information, prompting broad debate on what should be released and whether such information would jeopardize U.S. security, Silk explained.
Another press-related controversy that is still raging, Silk said, is whether journalists should be allowed to protect their sources given the fact that by divulging them, it could have a chilling effect on the willingness of people to provide crucial information.
“The issue of patriotism and treason is relevant” in all of these cases, said Silk, noting that in this technological era – which has spawned anonymous bloggers, for example -- it’s not absolutely clear who qualifies as a journalist and who should be offered protections under the law.
Fulco spoke about government surveillance in the wake of the September 11, 2001 attack on the World Trade Center and the “need to keep America safe.” In the wake of 9/11, Congress swiftly, and with little debate, enacted the USA Patriot Act, a massive and far-reaching law that tilted the balance away from citizens’ constitutional rights and toward dramatic steps to ensure a safe and secure country.
However, Fulco, noted, the pendulum has begun to swing back as many Americans, as well as members of Congress, now believe that the government was given unfettered license and authority to intrude in the private lives of its citizens. Fulco said the debate is raging over what is the proper balance in terms of keeping Americans safe and protecting their civil liberties. Fulco noted that even U.S. Rep. James Sensenbrenner, a Wisconsin Republican and an author of the Patriot Act, “has done a 180 and completely changed his mind now…The author of the law has become one of its principal critics.”
Sensenbrenner has argued that the National Security Agency (NSA), which operates under the jurisdiction of the Department of Defense and reports to the Director of National Intelligence, has committed “a fundamental breach of Americans’ rights” in monitoring, collecting and bugging private phone conversations.
Kiener tackled the subject of privacy at a point in time when it’s easy to record virtually every conversation, movement and activity of citizens due to the worldwide proliferation of computers, cellphones and other technological devices. Kiener views the ownership of computers and cellphones as “a tradeoff between convenience and surveillance.”
Although people often believe there is a “semblance of anonymity” in what they say and where they go, in fact, that’s a fiction, Kiener said. Not only have phone providers turned over records, but Kiener said that technology companies such as Microsoft, Yahoo and Google have also cooperated, making available such information as emails, photos, videos, and file transfers.
Kiener said it’s entirely legal to monitor a person’s conversations and activities if authorities believe there is a 51 percent certainty that the person is a foreign agent. He noted that so much information is being collected that the NSA is building a data center in Utah that will be able to store more information than “all written knowledge since the dawn of humanity in all languages.”
Kiener said there are a few ways to “beat the system” and protect one’s privacy, although most users don’t bother. But people could, for example, shut off the location services on their cellphones, encrypt their files and use search engines that won’t reveal search terms.
The panel of experts said they expected that President Obama would pull back from the Bush administration’s insatiable quest for information gathering, but they noted that that has not been the case. Silk speculated that Obama, who grew up in Hawaii, may have been influenced by the bombing of Pearl Harbor, which Silk termed “the worst failure of U.S. intelligence in history.”
Kiener said the NSA appears to have “a voracious appetite” for data collection and that it’s gathering every “bit and byte that’s out there – even in violation of the law.”
Fulco emphasized the recent shift in public opinion in favor of privacy rights and civil liberties, saying the Pew Foundation, which frequently does public opinion polling, has detected “double-digit shifts” across all demographics, including Democrats, Republicans, independents and even among Tea Party adherents.