Part IV:

Freedom's Future

A talk given by Eben Moglen at Columbia Law School on December 4th, 2013

Previously in this series: Part I: "Westward the Course of Empire", Part II: "Oh, Freedom", and Part III: "The Union, May it Be Preserved".

Good afternoon.

We must now turn our attention from what Mr.Snowden has taught us concerning the scope of our problem to what, with his assistance, we may do to conceive our responses.

We have seen that, with the relentlessness of military operation, the listeners in the United States have embarked on a campaign against the privacy of the human race. They have across broad swathes of humanity compromised secrecy, destroyed anonymity, and adversely affected the autonomy of billions of people.

They are doing this because they have been presented with a mission by an extraordinarily imprudent national government in the United States, which having failed to prevent a very serious attack on American civilians at home, largely by ignoring warnings, decreed that they were never again to be put in a position where they should have known.

This resulted in a military response, which is to get as close to everything as possible. Because if you don t take as close to everything as possible, how can you say that you knew everything that you should have known?

The fundamental problem was the political, not the military, judgment involved. When military leaders are given objectives, they achieve them at whatever collateral cost they are not prohibited from incurring. That is their job. And if you apply General Curtis Le May to a situation and you get havoc, well, that s what you called General LeMay in for. General LeMay was correct when he said that, if the United States had lost the Second World War, he and his staff would have been tried for war crimes. From General LeMay s point of view that meant he was performing his job.

It is not for them, the soldiers and the spies, to determine for themselves when their behavior is incompatible with the morality of freedom. That is why we regard democracy as requiring, among other things that are sine qua non, civilian control of military activity. When an especially imprudent US Administration abandoned the rule of law with respect to the listeners leaving behind only a simulacrum in the form of an appointed court operating in secret the consequences were not for the military listeners to judge for themselves. As we have seen, Mr.Snowden insisted that it was for democracy to impose the limits on that behavior. And democracy here Mr.Snowden agrees with Mr.Jefferson, and pretty much everybody else who has ever seriously thought about the problem requires an informed citizenry.

Therefore, Mr.Snowden sacrificed his right to everything that we hold dear our privacy, our security, our future in order to inform the citizens of the United States and the world.

What we are facing, as we have seen, is an environmental calamity. It has been produced by the collateral damage of that military listening, undertaken with relentless efficiency, by people who have more resources than all the rest of the world s listeners put together and whose task one that they were given by imprudent government authority they could legitimately consider as empowering them, indeed instructing them, to steal as close to everything as they could.

Thus they have corrupted science, they have endangered the security of commerce, and they have destroyed the privacy and anonymity of people who live under despotic governments, who are in mortal danger for what they believe, as a consequence of their destructive behavior. And, as long as it is still called

wartime,

as far as they are concerned, they are still doing their jobs.

We have, as with any other environmental calamity facing the race, no simple answers to any of the questions that are posed. No one thing works. It doesn t even work somewhere, let alone everywhere. On the contrary, we face a problem which, because it is an environmental calamity, calls upon us to perform, as we do at our best, by thinking globally and acting locally. That is to say, by locating the principles that need to be applied with respect to this privacy environmental cataclysm we are living through, and acting in our locales. Each of us must act as befits the role we play and the place we are in, recognizing that collectively we are trying to save freedom of thought and democracy for humanity, which cannot be otherwise saved. Because, as we have seen, pervasive relentless surveillance destroys freedom of thought. And without freedom of thought, all other freedoms are merely privilege conceded by government.

In such a situation we will have, in all the places that we work, political and legal as well as technical measures that we will need to apply. In one sense merely to prevent the problem from growing worse, and in another to begin the process of political reversal, as the people of the world signify, in all the places where they are entitled to self-government or the registration of their opinion, that they wish not to be spied on.

Mr.Snowden has shown us the immense complicity of all governments even those adversarially located with respect to the United States government on many issues with the United States Government s listening. They benefit from the fruits of the research conducted, to the extent that the United States government by agreement or generosity is willing to share them. They have turned a blind eye to the corruption of their communications operators, the

infrastructure acquisition

of the Americans, sometimes under intimidation, sometimes under partnership. All of these are relationships which, as Mr.Snowden has shown, extend in many cases back to the period immediately after the end of the Second World War. They have merely grown with time. The technical facilities that were covered by the arrangements went from telegraph to telephone, through rebuilding of the communication network destroyed in Europe by the Second World War. Now they embrace the world-wide

instant-on

Net we currently live within, and which we will extend if we do nothing to stop the expansion, further into the one neural system connecting all of human kind in one great big network later in the 21st century.

Mr.Snowden has shown, in other words, that everywhere everywhere where citizens are entitled to a voice in the making of policy the policies the people want have been deliberately frustrated by their governments. First, they wish to have a government that protects them against outsiders

spying. It is the fundamental purpose of government to protect the security of the people on whose behalf it acts, and so it is evident that government must protect citizens against spying from outside, everywhere. And everywhere where citizens are entitled to an expression of their will with respect to the government that conducts policing and national security surveillance at home, it is the will of citizens that such national security surveillance and policing should be subject to the rule of law, under whatever the local institutions for robust protection against government overreaching may be.

Everywhere it is possible to levy those two political requirements by citizens of democracies against their governments. Everywhere. Now.

You are not a government if you are not protecting our security, and our security includes not being spied on by outsiders. And, as you are a State that claims to be governing us under the rule of law, you must also subject your listening, both your national security listening and your criminal investigations listening, to legitimate legal review.

In the United States it will be necessary for us to add a third fundamental political demand to our activity. The United States is not I mean we the people of the United States are not ready to abandon our role as a beacon of liberty to the world. We are not prepared to go out of the business of spreading liberty around the world and to go instead into the business of spreading the procedures of totalitarianism. We never voted for that. The people of the United States do not want to become the secret police of the world. If we have drifted there because an incautious political administration empowered military men to do what military men do which is full speed ahead damn the torpedoes -then it is time for the people of the United States to register their conclusive opinion on that subject.

In the meantime, the President of the United States has the only vote necessary to end the war. All of this is possible because it is wartime or rather because of the myth that it is wartime.

Disregarding the civil liberties of Americans for national security purposes is possible in wartime only. Declaring that everybody who uses the American telecommunications network who doesn t have our passport is subject to no civil liberties protection at all is only possible in war time. And the idea that we can abandon the morality of freedom and spread the procedures of totalitarianism around the world in order to achieve security could only be possible in wartime. This cannot be our vision of a peaceful society. The fundamental imprudence was the use of a debateable constitutional privilege to go to war without congressional declaration to create wartime in the United States without end.

The people who did that will be harshly judged by history.

So will the people who refused to stop it.

The President of the United States has one vote and that vote can end the war. Our distinguished and honorable colleagues, the Supreme Court Justices of the United States, have nine votes that can restore the rule of law. No doubt they are reluctant to apply them, for a variety of reasons some of them I think all of us who are

constitutional thinkers

will agree are serious. But the time is coming when they must act.

All of us who have ever served the Federal Government, and I am one, have taken an oath to prese