When considering the revolutionary history of the United States, most would think of fighting for freedom, the enshrinement of basic human and civil rights in a constitutional government of the people, by the people and for the people.
But in his speech on reforms to the NSA and the United States’ intelligence gathering systems last week, President Obama had a creative new addition to the legacy of the American Revolution: surveillance.
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“At the dawn of our Republic, a small, secret surveillance committee borne out of the Sons of Liberty was established in Boston,” said the president. “And the group’s members included Paul Revere. At night, they would patrol the streets, reporting back any signs that the British were preparing raids against America’s early Patriots.”
Collecting the meta-data of billions of phone calls and 200 million text messages a day, as well as gathering data through the government’s PRISM program and placing bugs in 100,000 computers all over the world seems significantly more extensive than monitoring British troop movement via horseback and candlestick – especially when you consider that the data being collected is in large part that of the American people, not a foreign enemy during war time. Such metadata information would still be collected and stored in President Obama’s “reformed” NSA.
The reforms proposed by the President’s speech amount to nothing short of a bouquet of roses for American intelligence agencies. The changes detailed in the speech do almost nothing to actually rein in the growing national surveillance state. Billions of phone calls by Americans would still be collected and retained every single day – too much information for even the NSA to wade through properly. We’re creating a massive database that could be used at basically any time to determine peoples’ associates and behaviors.
While no cause would be necessary to collect this information, the president recommended requiring a court order for analysis of the retained data. This court order is far from a warrant under the Fourth Amendment, but is instead a rubber stamp from a secret court with a tendency to never say no. Considering that the definition of terrorism has sometimes included civil disobedience at demonstrations, the loose standard for issuing a court order for retained data is not a strong enough protection. Warrantless surveillance should be stopped altogether, and metadata should only be collected and retained on an individual basis by a court order under the Fourth Amendment, with a standard of probable cause.
Then there’s the continued question of national security letters.
And when “legal standards” do exist in the realm of government spying, they prove very different than the constitutional measures American citizens should be able to expect.
The president left the Foreign Intelligence Surveillance Court alone, despite its horrendous track record of authorizing a massive spying operation on all of us. This secret court has authorized wide-scale surveillance, issuing 35 opinions upholding metadata collection and consistently granting secret warrant requests. Rather than opening up the court, limiting its powers or changing the method of judge selection (as of now, all FISA judges are handpicked by Supreme Court Chief Justice John Roberts), the president instead suggested that Congress establish a panel of advocates to argue in these secret courts on behalf of civil liberties and privacy. Again, with no timetable or guarantee of Congressional action, it’s unclear whether or when this change would be enacted.
But even with a set of privacy and civil liberties advocates, these secret courts operate on a corrupted base. What good is someone arguing on behalf of privacy and civil liberties when the law allows for the unlimited collection of metadata and wiretapping on Americans without probable cause?
In and of itself, disappointment in the president’s proposed reforms isn’t surprising – in some way it was expected, as the purpose of the speech was most likely to take the pressure off the president to make real change. What is shocking is that speech did not even do that. Instead, it told all of us, both here and abroad, that massive, Orwellian surveillance is somehow patriotic.
President Obama’s assertion that our nation was formed as a result of a heroic history of surveillance, and that such surveillance is among the only things keeping us safe, is not only a striking reappropriation of the facts, but a misleading scare tactic clearly aimed at making Americans comfortable with the far-reaching government spying he seems bent to protect. The American Revolution was fought to prevent more than just taxes on tea. The British Empire’s use of general warrants – including “writs of assistance” that allowed agents of the king to search and seize colonial property, including letters and papers – was an abuse of power that the writers of our Constitution specifically sought to address and protect against in the newly formed government they had fought so hard for.
The American people should never accept the collection and retention of millions of records by a government calling for our trust. Because, as President Obama said himself, “History has too many examples when that trust has been breached.”