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October 24, 2014

Congress Must Keep Liberty’s Flame Alive | Wolfensberger

In this age of the Internet and high-tech surveillance, is individual liberty irrelevant, obsolete or just undervalued? The answer could well be all of the above, judging from tepid public and congressional reactions to recent government intrusions into individual privacy, speech, press and association rights.

Twenty-one years before the signing of the Declaration of Independence, the Pennsylvania Assembly sent a letter to the colonial governor urging him to sign a bill he was opposing on orders from headquarters (the monarchy). Included in the letter is a passage widely attributed to Benjamin Franklin, a member of the assembly, sounding the clarion call of liberty: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” (A variation of this sentiment can be found inscribed on a plaque inside the Statue of Liberty, thereby completing the circle of Franklin’s French connection.)

The debate over the proper balance between liberty and security has been going on long before our republic was founded, and it is reflected in the most-cited passages of the Declaration of Independence: Governments are created “to secure” the God-given rights of “life, liberty and the pursuit of happiness”; whenever “government becomes destructive of those ends,” the people have a right to form a new government “most likely to effect their safety and happiness.”

As we prepare to celebrate the 237th anniversary of our independence next week, those simple phrases offer a timely reminder that the central role of government is to provide the safety and security essential to everyone’s liberty to pursue happiness. Yet, that self-evident truth seems lost in the current debate as the fear factor takes hold. With each week, the number of terrorist attacks the government claims to have thwarted using domestic phone records and foreign email surveillance has escalated from two to four to 10 to more than 50 (at last count). Is it any wonder, given this proliferation of terrorist plots, that, according to a June Pew poll, 62 percent of Americans think it is more important to investigate such threats, even if it intrudes on their personal privacy?

Of course the terrorist threat is real: There are violent people out there who want to destroy us, and government must take precautions to prevent the recurrence of such attacks. And, as far as we know, the government is complying with the laws Congress enacted to authorize such activities — laws the courts have upheld.

But how can we have the serious national debate the president is now urging if even our elected representatives cannot inform themselves, let alone help educate and assure us that the government is not overreaching to the detriment of the people’s essential liberty? And how can we have that debate if government officials publicly dissemble (or are “least untruthful”) for fear of revealing classified information?

It is no longer enough to accept “just trust us” as evidence, whether it is coming from Congress or the executive. We’ve been there before. Trust in government is a rapidly diminishing commodity.

House Minority Leader Nancy Pelosi, D-Calif., has called for greater transparency and a strengthening of the Privacy and Civil Liberties Oversight Board created by the Patriot Act. Those may be good first steps, but it is Congress that is the ultimate keeper of liberty’s flame. It must exercise thorough, ongoing oversight of intelligence activities to identify and eradicate any excesses.

In 1928, by a 5-4 decision in Olmstead v. U.S., the Supreme Court held that the government’s warrantless wiretapping of suspected bootleggers was not unconstitutional. One of the four separate dissenters in that case, Justice Louis D. Brandeis, offered this timeless admonition: “Experience should teach us to be most on our guard to protect liberty when our government’s purposes are beneficent. … The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

That last sentence is literally writing on the wall of the House of Representatives in a first-floor corridor of the U.S. Capitol. Members should stop to read it.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

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