In 2006, it came to light that the National Security Agency (NSA) was collecting phone records. At the time, I found this unobjectionable because of a key nuance: those records were being volunteered to the NSA by the phone companies. The records belong to the companies, and they may use them however they like (as long as they don’t violate the terms of service and privacy policies they have in-place with their customers). This was a completely voluntary effort, and some companies—like Qwest—decided not to share their records with the government. We may like or dislike the NSA’s efforts, and we might have wished our phone company hadn’t cooperated with them, but no laws were being broken.
Around the same time, we also found out that President George W. Bush’s (R) administration was engaging in limited warrantless wiretapping of phone calls to and from some overseas numbers. Because this program dealt only with international calls, it fell squarely within the normal range of presidential war powers, and was also perfectly legal. Calls with both ends in the United States, on the other hand, could only be tapped with a warrant except in truly extraordinary cases.
The Fourth Amendment to the U.S. Constitution, with the assistance of tons of related case-law, demarcates clear lines between legal and illegal forms of electronic espionage and searches. The collection of data from businesses that voluntarily provide it falls on the legal side. The monitoring of phone calls to enemies across our borders in a time of war also falls on the legal side. The monitoring of phone calls and other communications after obtaining a warrant is also perfectly legal. But our government has played fast-and-loose with these lines before, and, thanks to Edward Snowden, we know they are still doing it today.
Snowden, formerly a low-level government contractor with Booz Allen Hamilton, publicly revealed the existence of an NSA espionage program that collects essentially all phone records in the United States under order of the U.S. Foreign Intelligence Surveillance Court (FISC). This sounds very similar to the program that was revealed in 2006, and is probably related, but now the NSA is compelling companies to provide the information whether they want to or not. Now it’s not voluntary cooperation, but a full-on search and seizure. That is where it crossed the line from a legal (if questionable) program to one that is blatantly, absolutely unconstitutional.
The NSA is welcome to encourage phone companies to voluntarily cooperate with their program. They are also welcome to obtain warrants (with reasonable justification) for records relating to specific people. They cannot, however, engage in an open-ended fishing expedition based on compulsion. They can’t seize all the phone records in the country in hopes of whittling it down to the bad guys.
The argument that President Barack Obama’s (D) administration is making in defense of the program is that it has successfully prevented terrorist attacks. I don’t doubt that this is true, but that doesn’t make it right or legal. Indeed, it is depressingly reminiscent of the argument that former Vice President Dick Cheney (R) made in defense of subjecting prisoners to waterboarding torture at the Guantanamo Bay military prison. Waterboarding got us good information that helped prevent terror attacks too. That doesn’t make it morally acceptable, or legally justifiable.
If we follow the Cheney/Obama logic through, we might as well just lock all Americans in their living rooms under armed guard. Sure, it would eliminate the vast majority of violent crimes, teen pregnancies, car accidents, and Lady Gaga albums . . . but at what cost? Is it really acceptable to trample on everybody to stop the minuscule percentage of them who mean to cause harm? Or is it better to target only the bad guys, even at the risk of missing some, in return for being allowed to live our lives unmolested and unmonitored?
Under the Fourth Amendment, searches and seizures must be narrowly orchestrated and target only people who are under reasonable suspicion. You can’t target everybody, and then narrow it down later . . . which is exactly what the NSA’s program does. It’s an unequivocally illegal program. The public has a right to know that it exists, and to demand that it be stopped immediately.
Sure, it’s nothing new. The Federal Bureau of Investigation (FBI) set up their Carnivore program in 1997 under President Bill Clinton (D), which similarly monitored practically all Internet traffic in an effort to sniff out particular bits of data. After its existence was leaked to the public, the FBI ‘shut down’ the program by renaming it to DCS1000 and keeping it in operation. When they finally did shut it down for real, they just replaced it with commercial software that did the exact same thing. We had a right to know about Carnivore, and we have a right to know about the NSA program too. We should be outraged about them both. We should thank Snowden for bringing the NSA version to our attention.
President Obama and countless politicos on both sides of the aisle have denounced Snowden as a traitor and a criminal. Federal prosecutors have charged him with theft of government property, unauthorized communication of national defense information, and communication of classified intelligence to an unauthorized person. These charges are nonsense and should be dropped or dismissed immediately. Snowden revealed to the American public—the sovereign leaders of this country—that their rights were being violated by criminals in our own government’s ranks. That isn’t a crime.
Snowden did nothing more than blow the whistle on an abuse in the government, which is exactly what we want our federal workers to do. In fact, Obama’s own Change.gov web site says, in part, “Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance.”
More importantly, all federal employees take an oath when they enter the public service:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God. [Emphasis added.]
Ironically, Snowden—as a contractor—didn’t have to take this oath. He followed it anyway. But his chain of command, which is made up of sworn federal employees going all the way up to the President of the United States (who takes a similar oath), all chose to violate it instead. Many of them now condemn Snowden for doing exactly what each of them is morally obligated to do, actions that President Obama promised he would encourage in the federal bureaucracy.
Edward Snowden is now apparently trapped in an airport in Moscow, Russia. His U.S. passport has been cancelled and he is unable to travel. He has requested political asylum with numerous countries which, under real or imagined pressure from our government, have so far all rejected him. The Obama administration has demanded that he be returned to the U.S. to face charges for crimes that aren’t even crimes.
It is frustrating that no country is yet willing to offer Snowden asylum, but not nearly as frustrating as the fact that he needs political asylum at all. The United States of America is still, on paper at least, a free constitutional republic. The people are her sovereigns, and our civil rights are non-negotiable. But now we are under attack by our own government, which is rapidly whittling away at those rights. And when we have the temerity to question it, to expose unconstitutional abuses, to demand a restoration of liberty, to call attention to the dangerous path that we’re on . . . well then we end up being harassed by the IRS or the Justice Department. And now we’re running American citizens out of the country and acting like they’re enemies of the state when they expose illegal activity in the government, all under the argument that the illegal activity is a matter of vaguely-defined national security.
I have long defended robust anti-terror policies and some limited civil liberty restrictions, including reasonable airport security (not including naked photography or invasive pat-downs) and the risk of international calls being monitored, because we are at war. Outside our borders, if you’re fighting on the enemy’s side, you run the risk of being attacked by a military drone or imprisoned at Guantanamo Bay (even if you’re a U.S. citizen). Them’s the breaks.
But here at home, the Constitution hasn’t been suspended. If we were in a state of rebellion or invasion, the U.S. government could suspend the privilege of the Writ of Habeas Corpus and impose martial law (U.S. Constitution, Article 1, Section 9) . . . but I don’t remember any announcement along those lines. Until the formal suspension of civil liberties, our domestic anti-terror efforts have to happen within the context of protecting the rights of the innocent. Until the formal suspension of civil liberties, Snowden isn’t the criminal. No, the government officials—including the President—who are acting outside of their authorities are.
Would these pesky constitutional restrictions, if they were actually still in effect, make it harder to catch terrorists? Yes. The Fourth Amendment sometimes makes it harder to catch criminals too. But in return, we get to live in a free country. I think it’s worth the risk. Apparently, Edward Snowden does too. Students of American history know that, not long ago, we celebrated the people who thought liberty was worth some risk as heroes, not criminals.