Since its earliest days, the United States has been a great experiment, testing whether a free people are capable of governing themselves through law, without the need of a king or dictator. King George III of England was the first of a long line of skeptics extending to this day, a line which includes the secessionists who triggered the American Civil War, and, most recently, NSA leaker Edward Snowden.
As all Americans are supposed to learn in school, we exercise our right to self-government through our Constitution, which establishes the three branches of our government: executive, legislative, and judicial. Many difficult political questions must be resolved within that system of government. And if we are personally unhappy with any result, we always have a remedy, electing different leaders to the executive and legislative branches who appoint and confirm the members of the judicial branch.
The most difficult political question for 19th century Americans was the future of slavery. Because a minority of Americans were unhappy with the results of the 1860 presidential election of Abraham Lincoln, secessionists joined the ranks of those believing self-government under the American Constitution to be impossible. Americans still believing in self-government under the Constitution were forced, at enormous personal cost, to deal with those secessionists.
One of the most difficult political questions for 21st century Americans is the proper balance between liberty and national security. With the 1978 enactment of the Foreign Intelligence Surveillance Act (FISA), and the frequent amendments to that act, including the USA PATRIOT Act of 2001 and its later amendments, Congress has authorized the president to act to protect national security through covert action, but where the rights of United States persons are concerned, only with the authorization of the Foreign Intelligence Surveillance Court.
That court has been described as a “secret” court because as authorized by law, its proceedings are not public, and its rulings, with a few exceptions, are not published. But all its past and present members have been and are named and sitting Article III federal judges, appointed like all federal judges by the president, and confirmed for life like all federal judges by the U.S. Senate.
So whatever rulings have been issued by that court, upon the request of the executive branch, have the institutional support and authorization of all three branches of our federal government. When former National Security Agency technician Edward Snowden leaks secret orders from that court, he’s declaring that a 29-year old high school dropout lacks belief in the capability of the American people to govern themselves through the Constitution and law.
Perhaps if he had completed his high school education, Snowden might have learned about the checks and balances inherent in our three branches of government and the history of our continuing effort to govern ourselves and decide difficult political questions under the Constitution. A better-educated person with his concerns might have discussed and shared them with the members and staff of the congressional intelligence committees, who have the same obligation to protect classified information as employees of the National Security Agency.
But by his act of unilateral grandiosity in publicizing classified information, Snowden is declaring his disbelief in our ability to govern ourselves under the Constitution and law. Those of us who still believe in our ability to govern ourselves under the Constitution and law will have to deal with Mr. Snowden.
I’m gratified to see that, in every poll, the American people continue to have faith that we are properly engaged in self-government under the Constitution and law on this admittedly difficult issue of liberty and national security.
Jan Ting is a Professor of Law at Temple University’s Beasley School of Law and a former Assistant Commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Jan can be reached at firstname.lastname@example.org.