An Addendum to My FOIA-ACLU Post, or, La Trahison des New Class:

What follows was posted up as a final addendum to the FOIA-ACLU post below; I’ve been urged to put it up as a separate post. I’ve hesitated to do so, partly because I think it will leave numbers of people thinking, perhaps correctly, that its political heat is excessive – and also because, due to various schedules, I’ve written at high-professor speed – no time to amend, edit, or make comprehensible. Apologies on both counts. I think there’s something of value here, even badly expressed. I’m leaving the comments off, however, as I would not have a chance to moderate or even read them.

With reference to what a number of commenters have said differentiating between collect information and collecting information on individuals. I will simply say in all candor that I do not understand that there is a meaningful difference between citizens reporting “rumors” and such in the abstract to the White House email address, and reporting on fellow citizens. It has been a theme of many of the comments, and with all respect, I think it is a difference without a distinction. Certainly it is the sort of distinction that civil libertarians have long rejected, as a matter of principle.

The principle, however, is not precisely the one that the commentators seem to be saying. Commenters on this thread, at least, seem to be taking the view that you treat everything the administration is doing in good faith so that unless someone presents evidence of – well, I’m not clear what for many of our commenters would actually count as something, but let’s say something that would cross the line. Short of presenting evidence of that, good faith requires that we trust the government. Other commenters naturally take the opposite view and claim that the administration acts per se in bad faith.

The American constitutional tradition, I suggest, is quite different from either – and consists of two not entirely consistent strands. First, it consists in not trusting the government. The freeborn citizens of this country have zero obligation to accept the government’s claims that it collects information or does much of anything else in good faith; the government has the obligation, as a general presumption – it can be answered, yes, but still a presumption of popular democracy – that it, not the citizens, has to account. We honor that ornery, recalcitrant position not because we think it is always right, but because it is a considerable bulwark, procedural as well as cultural, against tyranny. That’s why, crazy as I personally happened to think the left was acting during much of the Bush years, there was a certain abstract honor in it. But – and this is the crucial but – only as long as you are willing to grant the same to the other side in the alternation of power.


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