- - Tuesday, May 13, 2014


It was billed as a debate, but even with the Maple Leafs out of the NHL playoffs, my recent evening in Toronto felt a lot more like Hockey Night in Canada.

Renowned American lawyer Alan Dershowitz and I were debating self-described advocacy journalist Glenn Greenwald and young Internet entrepreneur Alexis Ohanian: Be it resolved that state surveillance is a legitimate defense of our freedoms.

And there was slashing, high sticking and the gloves came off before the first puck was dropped!

Mr. Greenwald was quoted the morning of the debate in Canada’s newspaper of record, the Toronto Globe and Mail, with this characterization of his opponents: “I consider [Hayden] and Dershowitz two of the most pernicious human beings on the planet. I find them morally offensive. There’s an element of hypocrisy to being in the same room with them, treating them as if I have outward respect, because I don’t.”

** FILE ** Glenn Greenwald speaks to the media after arriving at John F. Kennedy International Airport, on Friday, April 11, 2014, in New York. (AP Photo/John Minchillo)
** FILE ** Glenn Greenwald speaks to the media after arriving at ... more >

Even allowing for a little pre-game taunting to get into the head of the opposition, it occurred to me that the coming evening’s Munk Debate might not be a respectful give-and-take between people of broadly shared values on the difficult balance a free people have to make between their liberty and their security.

And I was right.

I lost count of the number of times that Mr. Greenwald and Mr. Ohanian just declared as a given the existence of an all-knowing, all-pervasive, oppressive “surveillance state.” Certainly far more often than Mr. Dershowitz and I referred to what Mr. Greenwald described as our “pretext” of fighting terrorism.

Mr. Dershowitz hammered the pretext argument and was relentless in not allowing the presumption of ill intent to stand unchallenged. Motives matter, he declared, even when people might be wrong — a rebuttal to Mr. Greenwald’s dismissal of our moral worth and the worth of any of our arguments.

Mr. Ohanian argued passionately for the survival of the global, ubiquitous, unitary Internet that we know today. I agreed that perhaps the worst result of the truths, half-truths and untruths in circulation would be to put wind in the sails of those who would destroy the Net, not because of espionage concerns but because they feared the free movement of ideas and commerce.

The debate organizers “helpfully” (and with little advance notice) parachuted in Edward Snowden in a specially taped commentary that reinforced the surveillance state meme. “It covers your email, it covers your text messages, your Web history, every Google search you’ve ever made and every plane ticket you’ve ever bought, the books you buy “

The list went on.

Despite all the rhetoric, though, the right answer to the question we were debating (is state surveillance a legitimate defense of our freedoms) is pretty obvious.

It depends.

In my opening comments I said, “It depends on the totality of circumstances in which we find ourselves. What kind of surveillance? For what kind of purposes? In what kind of state of danger? And that’s why facts matter.”

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