WHAT WOULD HITLER HAVE DONE WITH THE FRA ACT?

The United States of America is a nation of laws, not of people. This means that nobody stands above the law. While in practice many people can bend and twist the legal process, ultimately the American legal system keeps tabs on everyone. The ultimate example of this is when the U.S. Supreme Court rules against the President of the United States (as it recently did regarding the rights of the prisoners at the Guantanamo Bay Marine Corps base).

Sweden, on the other hand, is a nation of political parties. The moral foundations of governance are not manifested in the country's constitution. They are instead manifested in the way that the legislature - and therefore the prime minister and his cabinet - govern the country. The constitution does not rein in government powers, but provides instead a set of procedural rules as to how the legislature shall pass laws. There are no restrictions on what laws can and cannot be passed. More importantly, Sweden lacks a constitutional supreme court, leaving the interpretation of the constitution in the hands of the legislature.

This is why the FRA Act could pass the legislature with such convenience. From hereon any entity that would try it within Sweden would only issue a non-compliance opinion. It would have to go to the EU court system before Sweden's government could face any legal sanctions if it defied a court order.

When a legislature is given such uninhibited powers the potentials are frightening. The FRA Act is ostensibly to be used to spy on Russia's foreign telecommunications and to monitor terrorists in Afghanistan. If even one of these explanations were true the law would be obsolete the day Russia redirects its telecommunications away from Sweden (already about to happen) and there are no longer any Swedish military aircraft flying missions in Afghanistan.

The Swedish prime minister and his cabinet knew this, of course, when they strongarmed the Riksdag in to passing the FRA Act. The reason for wanting the law is therefore of a much more lasting nature. A highly plausible reason is, of course, that they want to be able to control political extremists at home. In doing so they need to exercise discretion and due diligence in who they want to spy on.

This is where things get dicey. Because the Swedish government can operate uninhibitedly it can also use its powers uninhibitedly. So long as the government has good intentions - which, by a stretch, we might say that the Reinfeldt administration has - these powers are used prudently and with a fair amount of responsibility. However, once another administration takes over, or the incumbent "good" administration is corrupted, the unrestricted powers easily and quickly become evil instruments of totalitarianism.

We have seen all too many examples of totalitarian governments who rise to power through benevolent but weak constitutional structures. The classic example is Adolf Hitler. Swedes tend to believe that they are forever shielded against such threats. Especially Swedish politicians tend to believe that the future cannot hold any new Hitlers. The problem is that it can. The saying "Those who cannot remember the past are condemned to repeat it" is as true as "Freedom is never more than one generation away from extinction". When people stand above the constitution, the fate of freedom lies in the hands of fallable men.

A totalitarian leader in Sweden would be well served by the FRA surveillance system. He would quickly be able to identify and shut down those who oppose him. If there were no FRA surveillance system, he would have to build it first. If the FRA Act could be tried in a constitutional court, the totalitarian leader would be halted before he could put his evil plans to work. Neither is possible in Sweden.

This aspect of the FRA Act has not been brought up in the domestic debate in Sweden, which does not bode well. One can only hope that the sustained resistance to the FRA Act among the public will grow strong enough to also handle the upcoming constitutional reforms. With the FRA Act in place Sweden is in even more dire need of strong constitutional restrictions on government powers.