I’ve been holding off on writing about the still-unfolding revelations of what the NSA believes it is entitled to do under the Patriot Act for a few reasons; partly because I’ve been trying to watch it unfold and absorb it all, partly because every aspect of it turns my stomach. But given that this feels like our generation’s Pentagon Papers (or, according to Daniel Ellsberg, even more important) and also that I had a running series of posts not too long ago titled “Is This Russia?”, I felt like I kind of need to walk the walk here.
First, the question is no longer “Is this Russia?” It’s more of a resigned statement: “This is pretty much East Germany.” At least as far as surveillance of the citizenry is concerned. The DDR’s Staatssicherheit, better known as the Stasi, voraciously combed information from every corner of the East German populace, to the extent that they employed one full-time agent for every 166 citizens. In a time of simpler technology, this meant handwritten notes and typed reports – billions and billions of pages’ worth. Everybody is running out to pick up copies of 1984 to see the future that could be. They should be renting “The Lives of Others” to see what already was. Unfortunately, the NSA’s capabilities for collection and storage of data on American citizens make the Stasi files look modest. And if Edward Snowden is to be believed, the NSA wants as much data as can possibly be had. As NSA whistleblower Thomas Drake said in USA Today:
There is no probable cause. There is no indication of any kind of counterterrorism investigation or operation. It’s simply: “Give us the data.” …
You would think – unless you’re someone as odious as Lindsey Graham – that it should be plainly obvious that the NSA having carte blanche when it comes to surveillance efforts on completely innocent people is, at the absolute very least, something undesirable for our society. I mean, I would like to think that. But I am wrong. Because if the @_NothingToHide Twitter feed is any indication, there are lots of people that think something like this:
I’m not a terrorist so I really don’t care if the government listens to my phone calls.
— †Deej (@DeejayBaxter) June 10, 2013
Cool story, Deej. I’m also not a terrorist. Neither, presumably, were soldiers in Iraq who were having intimate conversations with their spouses. I’m guessing they probably cared that NSA analysts were not just listening to their phone calls, but saving them to do god-knows-what with later. It’s almost as if there’s a slight chance this kind of power and access could be used inappropriately or abused!
But regardless of misinformed nonchalance like that, it’s highly likely that what the NSA is or has been doing directly violates the Fourth Amendment, which ensures citizens get to be secure “in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Whether they believe they are technically allowed to do it by how they interpret the Patriot Act or they feel protected by judicial oversight because the FISA court rubber-stamps them, it really doesn’t matter if they are in direct violation of the Constitution. The government doing a “select all” of phone and email records is pretty plainly an unreasonable search of our papers and effects. The self-evidence of this has to be one of, if not the primary reason it was kept secret; since actual terrorists already know the NSA is attempting to tap their phones, “keeping the bad guys in the dark” doesn’t really hold much water as a justification in this instance.
All of this makes former Constitutional law professor Obama’s comments at Ohio State’s commencement almost unbelievable in their brazen dishonesty, which is really saying something considering his first-ballot Hall of Fame record of brazen dishonesty:
Unfortunately, you’ve grown up hearing voices that incessantly warn of government as nothing more than some separate, sinister entity that’s at the root of all our problems; some of these same voices also doing their best to gum up the works. They’ll warn that tyranny is always lurking just around the corner. You should reject these voices. Because what they suggest is that our brave and creative and unique experiment in self-rule is somehow just a sham with which we can’t be trusted.
But “those voices” are exactly right, because the founders trusted no one. The founders believed that, because people are imperfect, tyranny was always lurking just around the corner if too much power was concentrated in one place. That is why they separated powers and included not just systemic checks and balances but the very Bill of Rights Obama’s administration was violating as he spoke these words.
So two administrations now, one from each party, have worked to construct and implement a system where the state’s default setting is to collect as much information about you as it can get its hands on, regardless of your behavior. You should think this is wrong. Especially because, judging by the reaction from what David Sirota perfectly coined “Permanent Washington”, there are many, many people who think this is right. Or at the very least, that if this is wrong, that Ed Snowden doesn’t have the requisite status to be telling us so. Here’s a piece from Kirsten Powers that is worth reading in its entirety, but I’ll share some of the best parts here (bold mine):
…Snowden has been called a “traitor” by House Majority Leader John Boehner. Sen. Dianne Feinstein called the leaks “an act of treason.” The fury among the protectors of the status quo is so great that you have longtime Washington Post columnist Richard Cohen smearing Snowden as a “cross-dressing Little Red Riding Hood.” The New York Times’s David Brooks lamented that Snowden, who put himself in peril for the greater good, was too “individualistic.” It seems that he wasn’t sufficiently indoctrinated to blindly worship the establishment institutions that have routinely failed us. Brooks argued that “for society to function well, there have to be basic levels of trust and cooperation, a respect for institutions and deference to common procedures.” This is backward. It’s the institutions that need to demonstrate respect for the public they allegedly serve. If Snowden or any other American is skeptical of institutional power, it is not due to any personal failing on their part. The lack of respect is a direct outgrowth of the bad behavior of the nation’s institutions, behavior that has undermined Americans’ trust in them. According to Gallup’s “confidence in institutions” poll, trust is at an historic low, with Congress clocking in at a 13 percent approval rating in 2012. Yes, this is the same Congress that has “oversight” of the government spying programs.
When one major institution (the Washington media establishment) so seamlessly partners with another (the U.S. government) in trashing a whistleblower, it’s not hard to understand why Americans might be jaded. The New Yorker’s Jeffrey Toobin wrote that Snowden is “a grandiose narcissist who deserves to be in prison.” MSNBC’s Lawrence O’Donnell complained about Snowden’s naiveté and “maturity level,” as if only a child would believe the government should be transparent about its activity.Politico’s Roger Simon called Snowden “the slacker who came in from the cold,” with “all the qualifications to become a grocery bagger.” That people feel comfortable sneering about grocery workers—a respectable job—and writing off Snowden’s years working as a security guard as sloth tells you a bit about the culture of the nation’s capital, doesn’t it?
I wish I could list the various people across the political spectrum who have shifted into the particularly ugly mode of attacking the messenger that Powers is describing, but there are actually too many to count. That journalists make up a significant portion of that group should alarm everyone. Who knew that in the informal (albeit misunderstood) journalist’s creed to “afflict the comfortable and comfort the afflicted” that the “afflicted” would be the NSA?
One particularly galling argument from these people has been to claim that Snowden is not a whistleblower. This position is summed up succinctly in this op-ed from Sen. Bill Nelson (D-FL) in the NY Daily News:
Is Snowden, as some claim, a whistleblower? No. A whistleblower exposes abuses, lies or fraud perpetrated by our government.
Considering Snowden has exposed perjury by the Director of National Intelligence, looks like he meets Nelson’s definition! It’s telling though, that a U.S. Senator doesn’t believe indiscriminate surveillance of millions of Americans constitutes “an abuse perpetrated by our government.” But this is the current mindset in Washington – a kind of “if the President does it, that means it is not illegal” writ large to cover the entire federal entity. They operate on the default assumption that the NSA would only make excellent – not to mention, Constitutional – decisions…while at the same time sneering that a “high school dropout” is some narcissistic rogue operator who got his hands on files above his paygrade. But those positions don’t square. Why would we trust the NSA with our information when they so clearly don’t know who to trust with theirs?
Thankfully, I know of at least one U.S. Senator who believes all of this to be very much in the wrong:
If someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, through the phone calls that you made, the emails that you sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea. No jury will hear your case. This is just plain wrong….Giving law enforcement the tools that they need to investigate suspicious activities is one thing. And it’s the right thing. But doing it without any real oversight seriously jeopardizes the rights of all Americans, and the ideals America stands for.
Nice! Who is that guy? Oh, shit.