Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should be bound by the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine.
Part I introduces the notion of panvasive law enforcement — large-scale police actions that are not based on individualized suspicion — and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation-reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not currently considered a search or seizure under the Fourth Amendment, using fusion centers, camera surveillance, drone flights and the NSA’s metadata program as examples. Part III mines administrative law principles to show how the rationale underlying the nondelegation doctrine — if not the (supposedly moribund) doctrine itself — can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the Executive Branch.'The Snowden Disconnect: When the Ends Justify the Means' by John Robinson Jr. comments that
People react to Edward Snowden and his national security disclosures in radically different ways. Security hawks want his head and call him a traitor; privacy advocates think him a whistleblower and a national hero. This essay examines those positions and finds that there is a fundamental disconnect between them, which influences and prohibits an important national conversation concerning the scope of the NSA’s work, the laws under which it operates, and privacy rights of United States citizens. This essay concludes that the privacy advocates have the stronger interests, and that it is wildly inconsistent for the government to simultaneously seek Snowden’s prosecution at the same time it engages in substantive national-security legal reforms.Robinson goes on to state
Wide disparity exists across the United States in the response that American citizens have to Mr. Snowden and his disclosures. On one end of the spectrum, the security hawks present leaking the files as a traitorous act with grave national security implications. At the extreme, some claim that the leaks will lead to American deaths. On the other side, privacy advocates view the disclosures as essential information concerning governmental overreach and constitutional violation. In their view, such knowledge empowers society to make cogent choices concerning privacy and security and Snowden should be hailed, not condemned.
However, the current Snowden-based dialogue generally sees little “conversation” taking place—both positions are talking past each other, not to each other. This gives ride to an interesting, if not altogether unique, situation. And until there is some remedy to it, there can be little progress toward reconciling the interests of the two groups. Without a meaningful dialogue, both sides will continue to dig in their heels and take positional, rather than interest-based, postures.
Positional thinking is black and white — Snowden is a bad guy or a good guy — but fails to understand the connection between the position and the interests that underlie it. That is, security hawks forget that their interest is in national security, not in trampling on the Fourth Amendment. Such a positional approach ignores the interests of the other side (e.g., privacy rights) and does not allow a meaningful conversation to take place.
Ultimately, this lack of conversation stems from the two diametrically opposed ways of interpreting the Snowden disclosures. That is, the two positions are not in conversation because they are not using the same lens; each position views the Snowden revelations in completely different light. To explain, this essay groups Snowden’s revelations in two distinct ways—the red lens and the blue lens.
Through the red lens, Snowden’s revelations have done damage to the U.S. security apparatus. Take disclosure of NSA’s MYSTIC program, discussed supra Part I.B.3, for example. Assuming that MYSTIC is in fact targeting Iraq, and Iraq did not know about the program, one can easily imagine the damage done. Terrorists and security threats within that country are now on notice that their communications are completely compromised; before the Snowden files, they probably were not taking appropriate precautions because they did not even know they were under surveillance. In this view, it is not particularly important that some American conversations might get swept up among the mass of Iraqi calls, and the efficacy of NSA’s MYSTIC program is severely compromised.
Through the blue lens, Snowden’s revelations simply exposed a vast and unknown security apparatus. For instance, the PRISM program and Verizon metadata-collection disclosures, discussed supra Parts I.B.1–2, tell the story of a government agency gone astray. The NSA, an agency that supposedly only operated outside of the U.S., had instead turned its eyes and ears on the homeland — surreptitiously collecting data about U.S. citizens that were on American soil. Adding to that baseline, the fact that many large companies seemed to be complicit, whether knowing or not, in the NSA’s data collection meant to many people that Snowden revealed a military-industrial complex that disregards large sections of the Constitution.
This major and fundamental difference trickles down into other aspects of the Snowden affair and the media’s portrayal thereof. The position that a person takes on the Snowden revelations depends on which version of the Snowden account, illustrated above, that she accepts. For example, people infer Snowden’s intentions based on the color of their own personal lens. Those seeing red portray Snowden as an egotistic, self-interested attention seeker who cares little for the safety of the United States. The blue-lens people, though, portray him as a moral and principled patriot who risked it all because of his convictions.
Two reasonable people can take radically different positions on the whole affair based simply on their own bias—elevating one view automatically subjugates the other. In this way, privacy advocates and security hawks are really not even part of the same conversation. ...
Understanding the viewpoint disconnect illustrated above informs the associated disconnect between Snowden the hero versus Snowden the traitor. Because the security hawks only see the harm that Snowden did, they call for his prosecution. Privacy advocates take the opposite line, concluding that his disclosures fueled democratic debate and cast light into a dark area of government action—and that Snowden should therefore be indemnified. However, arriving at a real answer — whether Snowden is a hero or a traitor — requires rejecting the notion that this is a positional black or white debate, an either/or question. Indeed, the only way to find the “right” answer is to balance the benefits produced by the Snowden files against the harms. And then, to apply that analysis to United States democracy.
So far, the government has been unwilling to engage in such a balanced inquiry. Indeed, President Obama’s proposed reforms to the NSA’s bulk data collection policy do not even acknowledge the Snowden files as the precursor (or even a precursor) to the proposal. It is disingenuous for the government to disclaim or ignore such an obvious connection; one must infer that President Obama had some purpose for avoiding it. One obvious purpose for avoiding a direct discussion of the Snowden-to-reform connection is to maintain the ideological disconnect between the two. Of course, maintenance of the disconnect is an illegitimate policy rationale.