Some friends have asked me recently my position on this issue, and I've told them I'm against it, but I haven't really been able to succinctly explain why. This blog post is an effort to do that. Hopefully it will help me organize my thoughts into a coherent argument. This is a pretty long post, so if you want the executive summary, just skip to the last two paragraphs, but I'd really recommend going over the whole thing.
First of all, let me define what I am talking about so we can all be clear on it. I'll just quote from the first paragraph of the wikipedia article on the subject as an intro:
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the "terrorist surveillance program", the NSA is authorized by executive order to monitor, without warrants, phone calls, e-mails, Internet activity, and text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. The exact scope of the program is not known, but the NSA is or was provided total, unsupervised access to all fiber-optic communications going between some of the nation's major telecommunication companies' major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic.So basically, the US government got access to most all of our private communications and was able to look through them for signs of terrorism. All of this was completely unknown to the public until the New York Times published the story in 2005. There were (and are) arguments about the legality of this, but thanks to the amendments to the law concerning government surveillance (FISA) passed this summer, it is now legal, though in my opinion still unconstitutional.
So why am I against this practice that the Bush Administration says is vital to the war on terror? As long as I'm not a terrorist, I have nothing to worry about, right?
The first problem I have with warrantless wiretapping is that it runs completely counter to the letter and the spirit of the Constitution. One of the big complaints of the American colonists in rebelling against England was the use of writs of assistance. These little things were like warrants, only the Brits didn't have to be specific about what they were looking for and the writs didn't expire. Americans didn't like that, and cited them as an example of British tyranny and one of their reasons for the revolution. Then, when they succeeded in forming their own country, they wrote something called the Fourth Amendment that requires the government to have probable cause to conduct a search, ensures the warrant is limited in scope, and a law enforcement officer must swear to the information given in asking for the warrant, making someone responsible for the search. Today our government is doing something very similar to using writs of assistance; true, they don't knock down our doors looking for whatever they want (they still need a warrant for that), but they do secretly listen to our phone calls, emails, and other communications. That is just as invasive, and just as contrary to the Fourth Amendment, in my opinion.
Well, if I'm not a terrorist, what do I care if the government listens in on my phone calls to my friend Nadejda in Estonia? You might also ask those uppity colonists in 18th century America what they were so worried about; after all, if they weren't smugglers, British police wouldn't find anything illegal in their houses and they would be fine. Well, there is the principle of privacy (A man's house is his castle, right?), and especially the abuse thereof. I think we as a people today tend to just trust the government to do what is right, but that is not a very wise idea. Absolute power corrupts absolutely, or in the words of Joseph Smith, "We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion." In plain English, government officials
Right now I'm going to go into a bit of a detour and talk about the ways that our government has abused (and continues to abuse) its powers of surveillance, especially in counter-terrorism situations. For past examples, just look at the FBI's COINTELPRO program. No really, read that wikipedia article, it's an eye-opener. Methods used by the FBI against targeted groups (many of which were non-violent civil rights groups) under this program included:
- Harassment Through the Legal System: The FBI and police abused the legal system to harass dissidents and make them appear to be criminals. Officers of the law gave perjured testimony and presented fabricated evidence as a pretext for false arrests and wrongful imprisonment. They discriminatorily enforced tax laws and other government regulations and used conspicuous surveillance, "investigative" interviews, and grand jury subpoenas in an effort to intimidate activists and silence their supporters.
- Extralegal Force and Violence: The FBI and police threatened, instigated, and themselves conducted break-ins, vandalism, assaults, and beatings. The object was to frighten dissidents and disrupt their movements. In the case of radical Black and Puerto Rican activists (and later Native Americans), these attacks—including political assassinations—were so extensive, vicious, and calculated that they can accurately be termed a form of official "terrorism."
That's right, the FBI resorted to terrorism to fight terrorists and hate groups. Read a little more about what they did to the Black Panthers [NOTE: I am not saying the Black Panthers were good: I strongly disagree with a lot of their policies, and they would have been a fine target for legal and constitutional surveillance; the point is, the FBI did some horrible and very illegal things to them].
OK, sure, the 60's were just crazy. But nowadays, that kind of crap doesn't really happen, right? Well... recently in Maryland, for one example, Thomas Hutchins, the State Police Superintendent, ordered his forces to secretly infiltrate anti-war and anti-death-penalty groups. That enough is troubling to me. I have participated in anti-war marches, and I am staunchly against the death penalty and am involved in my college's chapter of Amnesty International. I don't want secret government agents in there watching what we do and keeping notes on us. I am not a terrorist! But that in itself isn't the most outrageous part; not only were these groups infiltrated and tracked as if they were criminals, their members were put in the national terrorism database and the Washington-Baltimore High Intensity Drug Trafficking Area database! Now these people will get hassled when they try to fly, when they ship a package, and who knows when else. These people, even the police admit, had no involvement in violent crime whatsoever. They were trying to lessen violence in the world, for crying out loud! But when the government has power to watch and harass these kinds of groups, there are officials who will. That should not be legal.
Depressingly enough, that is not the only example of government abuse of power in recent days. In a matter more directly related to this post (yes, I have been on quite a tangent, sorry), it has just come to light that the NSA Warrantless Wiretapping program was abused by operators listening in on calls from US servicemen stationed to their spouses back home. While I think it's highly unlikely that our soldiers are terrorists, that's not even the worst of this story either. The operators would tell each other to listen in on the more, ahem, intimate conversations between them. Just for fun. That is just plain messed up. Now look, I'm not saying every one of these operators does this, or that the government's plan in enacting warrantless wiretapping on Americans was designed to do this, but my point is that things like this will happen. Personal conversations will be shared or laughed at or leaked onto the internet or whatever. It's just not a good idea to have the government listening to them in the first place if you believe you have any sort of right to privacy. (For more details on this, read this ACLU press release)
Now coming back to the issue at hand: giving the government unfettered access to our communications without them having to give any evidence someone might be a terrorist. If we give the government even more power to secretly listen in on our communications, are we supposed to just trust that they won't hassle and intimidate non-violent groups that oppose some of their policies? You know, like they have done and are doing? If I call my friend Carl about my opposition to the execution of Troy Davis and plan a march to raise awareness for it, will the government put me on a terrorist watch list? Hopefully not, but Maryland did it and still doesn't see anything wrong with it. I don't see anything in the federal government's past or present actions to prove that they would not do very similar things, things which have a chilling effect on free speech.
Then there's the humanitarian groups and journalists whose work is directly hindered by warrantless wiretapping. Since this post is getting long, I'll just say that there are people who document human rights abuses and journalists who have contacts overseas, and they need to guarantee strict confidentiality to their sources. Since the warrantless wiretapping bill passed, they've been having a lot of trouble getting people who are willing to talk to them. For more info on this, see this article.
And finally, there's the question of effectiveness. Does having the government listening to all our calls make us safer from terrorist attacks? One of the operators who participated in the program thinks the opposite is true. ABC News interviewed a U.S. Army Reservist who won the NSA Joint Service Achievement Medal in 2003 who said "By casting the net so wide and continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack bigger and it’s harder to find that piece of information that might actually be useful to somebody." When you know you're going to be putting hundreds of thousands of innocent people onto your possible terrorists list, how will that help you find the actual terrorists?
So I think that captures pretty well why I'm against the government listening in on the private conversations of us, its own citizens. It's unconstitutional, it will be (in fact, already has been) misused to the detriment of our privacy, and it generally makes the search for actual terrorists more difficult by introducing lots more useless data. I am certainly in favor of vigorously rooting out and prosecuting terrorists, but treating all US citizens as suspects is not the way to do it.
I remember a few days after the FISA amendments were passed this summer, my friend Nadejda called me from Estonia. We had a nice conversation, but once we hung up it immediately struck me that someone who I will never know could very well have been listening to everything we said. That is just creepy, and, quite simply, unamerican.