What is the most important civil rights issue in the United States today? Access to justice, voting rights, discrimination, rising inequality of income, wealth, and opportunity, police and prison misconduct, ensuring we have a fully functioning and robust democracy—these and other issues are all vital.
But surely one of the great civil rights issues of the day is our government’s mass surveillance of ordinary Americans. Hundreds of millions of Americans. In 2006, thanks in part to AT&T whistleblower Mark Klein, I filed a federal class action lawsuit (Shubert v. Bush, now Shubert v. Obama) alleging that the National Security Agency copies and stores the content of millions of domestic phone conversations and email: with loved ones, friends, doctors, lawyers, lovers, teachers, preachers, in short, everyone. As Mr. Klein put it: “They are collecting everything on everybody.”
A spying organization legally prohibited from spying on Americans is now spying on every American. Last year, Edward Snowden revealed, and the government confirmed, that every day, every minute, the NSA monitors every phone call in this country: who calls, who answers, when, how often, for how long.
Mass interception of millions of domestic phone calls and Internet communications is illegal. It violates the Fourth Amendment of the Constitution, which prohibits indiscriminate searches of persons, houses, papers, and effects, including phone calls and email. It violates the Foreign Intelligence Surveillance Act. It is likely the most widespread civil rights violation in the country, violating the rights of, well, everyone.
So, where is the outrage? Here are some responses I’ve heard:
It Can’t Be True. Is it possible our government is spying on the entire country? Pre-Snowden, skepticism was common. Google “Mark Klein” and “AT&T” and you should be convinced.
If It Prevents Terrorism, I’m for it. Fear is a powerful motivator. Even some civil rights lawyers have said: if it keeps me safe, I’m for it. Safety über alles. Let’s be clear. A national DNA database of all Americans would make us safer. An NSA camera in every bedroom—not just a wiretap on every phone—would make us safer. Eliminating the Fourth Amendment would make us safer (from terrorists, at least). It’s not the Constitution we have. Is it the country we want?
I Have Nothing to Hide. Nothing? Your most intimate conversations with loved ones, emails with therapists, political beliefs, medications, abortions—all known to the government? Would you even like to live in a country where 300 million people have nothing to hide from a national intelligence agency? Even if you don’t value your own privacy, we should respect those who value theirs. The “right to be let alone,” Justice Brandeis wrote, is “the most comprehensive of rights, and the right most valued by civilized men.” For anyone with a phone, a computer, or a PDA, that right no longer exists in today’s America.
The Government Hasn’t “Abused” the Dragnet (we’re told). A massive spying program monitoring every phone call to and from every American 24/7 is itself an extraordinary abuse of power, unprecedented in American history. What more “abuse” do we need? In any event, we have no idea what the NSA does with this information. The same people who deny “abuse” denied the spying dragnet itself. Last March, James Clapper, Director of National Intelligence, was asked: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Any type of data at all. Mr. Clapper’s reply: “No, sir . . . not wittingly.” This, in sworn testimony to Congress. Mr. Clapper now says this was the “most truthful, or least untruthful” testimony he could give. Do you trust this man when he says the NSA is not “abusing” its power to know every aspect of your life? From King George III to pick-your-dictator to J. Edgar Hoover, the history of power is a history of abuse. Don’t think this time will be any different.
If We Don’t Surrender Some Freedom Now, We’ll Surrender More Freedom Later. Thomas Friedman argued in a New York Times column: if we don’t surrender some liberty now, we will inevitably have another terrorist attack, and in a fit of panic, surrender even more liberty later. But we can’t appease our worst instincts. Freedoms are easy to lose, difficult to regain. So let’s give ourselves some credit. The Constitution survived the Civil War, the Red Scare, two World Wars, McCarthyism, and the Cold War. For over two hundred twenty years, Americans have fought to realize the full promise of the Constitution, for civil rights, women’s rights, gay rights, a robust First Amendment, a robust Fourth Amendment. Are we to give up one of the pillars of the Constitution now? Benjamin Franklin famously wrote: “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” I admire Friedman, but I’m going with Franklin. Let’s fight terrorism without sacrificing the Constitution in round one. The terrorists can’t take our freedom away. Only we can.
I Trust the President. We live in a polarized country. The Right doesn’t trust President Obama. The Left didn’t trust George W. Bush. The Framers had a broader view: they didn’t trust power. The Framers’ fear of concentrated power defined the Constitution: its separation of powers, its checks and balances. A spying program of all Americans under the control of one man—the President of the United States—is a power none of the Framers could have envisioned, and all would have abhorred. The President says there are internal controls and safeguards at the NSA. “Trust me” may be the President’s main argument; it is the opposite of Constitutional discourse. And even if you trust this President, what about the next?
There’s Nothing I Can Do About the NSA, So Why Worry? We live in a democracy. We can do something. Call your Congressperson and Senator. Convince a neighbor, write a blog, start a petition, join a lawsuit. We control the government, not the other way around.
We don’t have to live in a surveillance state.