A Constitution Day Plea against NSA Surveillance

This was posted on the Tully Center for Free Speech's blog Free Speech Zone, and can be found here.

Today is Constitution Day, which marks the 226th anniversary of the ratification of the document which forms the legal outline of our society. This document includes values such as limited government powers, inter-branch checks and balances, and the personal right to be secure in one’s effects. Today is the day to reflect on how poorly we have done to maintain these values.

While government surveillance and opacity are not wholly new, the recent revelations of NSA metadata collection and activity exceeds the scope of all previously known examples of government overstepping. The National Security Administration (NSA)  routinely engages in the compilation of information on both domestic and foreign communications, acting inconsistently with the Foreign Intelligence Surveillance Act (FISA). More importantly, in October 2011, U.S. District Judge Bates wrote that the NSA acquires information with “substantial intrusions on Fourth Amendment protected interests.” To do this, the NSA has not only created an array of data collection technologies, but has also co-opted private data collected by complicit corporation. The NSA has hacked into the United Nations and has given your private information to the Israeli government. How can any American feel secure in his or her personal effect?

One might respond that we are in a time of war, exempting us from Constitutional limits on the grounds of necessity. However, the horrors of war were just as real to those who fought the Revolutionary War and created our founding documents as it is now for those who witnessed the horrors of 9/11 and face endless threats to domestic tranquility. We must remind ourselves that those documents originate from the cauldron of war by people who surely faced death if their revolution proved unsuccessful. Their values remain as true today as they did over two hundred years ago.

Any law is only as good as its enforcement, and the Constitution is no exception. We must  stand and assert our fundamental rights if we fear their erosion. Earlier this month the Associated Press reported that nearly 60% of Americans oppose the NSA’s metadata program. But without constituents in the streets and anger in their inboxes, our representatives have no incentive to challenge the current national security structure. As such, action is required to show Congress our disagreement of these programs. I call on all Americans to join the Stop Watching Us Coalition and Restore the Fourth in Washington, D.C. during  the weekend of October 26th for a day of action against the NSA’s mass surveillance. This day marks the anniversary  of the USA PATRIOT Act, legislation passed in response to the 9/11 terrorist attacks aimed at shaking our great nation’s strong foundation.

America is indeed an exceptional nation, full of amazing people and unthinkable potential. But if we the people don’t hold our government to its Constitutional limits of power, our liberty will be irreparably eroded by the fear of a possible enemy at the gates. As such, we must realize now that the true enemy of liberty comes from within–our own complacency.

Open Governance and Public Diplomacy

I wrote this blog for the Exchange website. You can find it here.

NYPD Surveillance of Northeastern US Muslims

UPDATE (12 March):

Today I received a letter in response to my FOIL request (below) send to the NYPD. It is dated 9 March and states, in part, “…a further review is necessary to assess the potential applicability of exemptions set forth in FOIL, and whether the records can be located. I estimate that this review will be completed, and a determination issued, within twenty business days of the date of this letter.” It was signed by Richard Mantellino.

 

So, hopefully before 6 April I will have a final determination on my FOIL request. Make sure to check back for updates!

ORIGINAL POST (2 March):
As my readers should know, the NYPD has a surveillance program which targets Islamic groups throughout the northeastern part of the United States. And they claim that it is legal. I’m skeptical.

Surely the 4th Amendment assurance against unreasonable searches is implicated here. The Supreme Court has recently held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” While the data collection of groups of individuals based on religion is greatly different than the case in US v. Jones, there are enough issues here to raise ‘red flags’ of possible unconstitutionality. Moreover, such targeting based solely on religion seems to run counter to the spirit of the 5th and 14th Amendment assurances of the equal protection under the law for all citizens.

I would like to quote Justice Murphy’s dissent from the famed Korematsu decision regarding the internment of Japanese-Americans during World War II:

I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.

Korematsu v. U.S., 323 U.S. 214, 242 (1944). What we have with the actions of the NYPD certainly appear to be legalized discrimination against a religion.

However, this issue shouldn’t be thought of in a strict legal sense. To paraphrase Dennis Parker of the ACLU, 'What is at stake is the kind of country we choose to be. Any willingness to accept the abridgement of the rights of some in the name of national security erodes the very foundation of our nation. We must recognize that injustice anywhere and against anyone is injustice against us all.' The experience of humanity has shown that blanket group-based presumptions on the part of the government harm the innocent more than they deter the guilty.

In the end, I am not qualified to give a legal opinion on the issue; I can say that I find in contention with my notion of civil liberties and equal protection. Does the NYPD really have solid evidence to suspect each individual targeted—enough to warrant such surveillance? What is the full scope of such surveillance? There is a lot that the public doesn’t know.

But the public must know. The public—as the ultimate sovereign—should know the legal and constitutional basis for the wholesale panopticon-esque, Big Brother-esque surveillance on a minority group. This again makes American appear reactionary and bigoted around the word. As such, in order to find out more, I have filed a FOIL request—that is, I have invoked the Freedom of Information Law as a citizen of the State of New York to compel the NYPD to provide any records they have on this program.

Unfortunately, there are several law enforcement exceptions to this law that the NYPD will likely claim, but I wish to at least indicate to them that the public needs to know more about what is going on with this program. So, while I don’t think I will be receiving any more documents like the AP has received from a source, I might get something to share here.

The New World

Information has broadened

More people are able to access information than ever before. The internet, social media and cell phones have distributed information wider and faster than imaginable only twenty years ago. Information and news about any incident on any part of the Earth can travel to your hand or home instantly. While many in the world remain without access or ability to receive such media, the Arab Spring has shown that around the globe, the people increasingly control messaging.

No longer must we rely on the ‘gatekeepers’ to tell us what is important and what is interesting. Websites like Reddit, Twitter, Digg, and more allow we the people to decide for ourselves.

Power has democratized

According to Freedom House In the early 1970s, there were around 40 democracies. Presently, there are over 120, with more on the way. Increasingly, people are making decisions which effect governance and foreign relations. Periods like decolonalization, the fall of the Soviet Union, and the Arab Spring show a clear march toward self-determination and democracy. Increasingly, regular people will be able to have a voice in the direction of their government. Governments around the world must listen to their people.

No longer must we rely on elites to communicate our policies and values abroad. We can communicate directly to foreign publics, unmediated and unadulterated, to express our interests and sentiments abroad regarding international concerns. Speaking directly to power now means speaking directly to the people.

Governance has opened

WikiLeaks and Anonymous have shown that now anyone can publish mountains of uncensored data available for the whole world to see. Julian Assange published his leaked information for the world’s publics to see without gatekeeper censorship. If governments do not open themselves by passing Open Government laws and declassifying non-essential material, people like Assange, Bradley Manning, and groups like Anonymous will do it for them.

During the Vietnam War-era, the publication of the Pentagon Papers by the New York Times shined the light on the actions of the U.S. Government in Southeast Asia. No longer must we rely on the institutional press to disseminate this information. If we the people wish to know the working of our governments, we have the right, the will, and the power to find out.

Resistance has crowdsourced

The Green Revolution, the Arab Spring, and Wisconsin's protests and #OccupyWallStreet have shown that leader-less protest, resistance, and revolution are all possible and successful. We now can simply crowdsource to define our grievances, goals, desires and needs. Top-down structures are anachronistic and are un-democratic ways to resist the halls of power. Indeed, the present paradigm of such power does not know how to approach a truly egalitarian movement, and thus renders the structure impotent to change in the face of a new global structure.

In the past, revolutions mirrored states: they had a hierarchical structure of authority. No longer must we hope for a Washington, Jefferson, or Madison to come along and lead our movement; we lead the movement ourselves, collectively.

The new world

In the old world, governments, media, military, and economic power was held by elites, influenced and benefitted by each other. Elections and commercial choices were limited and often illusory. However, the changes above are upon us. All of these changes have supported and furthered each other. The combination of all of them has shown to us a new world paradigm of power approaches. We must take this opportunity. We must assert our rights by making our grievances known through this new egalitarian paradigm of power and compel power structures to return to the hands of the people. If we do this we will bring forth a world where real power exists in the hands of all of us, and structures are created to benefit the masses. If we stand up and assert our grievances, we can work together to create the new world.

Welcome.

The Over-Reaction to WikiLeaks

“If you want safety, peace, or justice work for competency, honesty, and transparency.”

Dr. Bill Corcoran

Politicians and commentators from across the country and across the aisle reacted worrisomely to the WikiLeaks cables released over the past months. From Congressman Peter King to the more legally nuanced position of Vice President Joe Biden, the word terrorism has been brought up in discussions of the actions of Assange & Co. Simply put: the American reaction to WikiLeaks tells the world more about America than the cables have. That reaction has been a dangerous one.

1.      Public Diplomacy

In general, Americans would like the world to view America as an ethical entity. Our foreign policy generally supports governments we feel are controlled by The People and the democratic peace theory is often a core assumption of our foreign policy. Recently the Obama Administration praised Google for standing up to China by refusing to censor search results. Several years ago the Bush administration condemned China’s treatment of political dissidents. After all, the President of the United States is the ‘Leader of the Free World’.

Despite this, America’s collective national knee-jerk reaction to WikiLeaks was to yell ‘terrorist!’ and to have the site shut down, as evidenced by reactions of Amazon, PayPal, MasterCard, etc. In terms of maintaining trusting relationships, honesty and staying true to one’s values are best practices. This goes for personal relationships and inter-governmental relationships alike. How America’s public and private sectors react to journalists show the world what America values. We as a people can’t condemn China for silencing whistleblowers and dissidents when our own corporations and politicians are trying to stamp them out as well. We must realize that if we wish the world to value openness in governance, we too must value it.

2.      Civil Liberties

The labeling of WikiLeaks as a terrorist organization is worrying. WikiLeaks has simply published material, the veracity of which the government has not denied, against the interest and wishes of the government. It’s true that material has been classified, but the simple fact that no actually crucial or important security information has been leaked is proof that this material was not deserving of such a designation in a government of The People. If a legal case against WikiLeaks were to be successful, no organization or individual would publish leaked material, denying citizens that rare glimpse into a government that is supposedly run by them.

 The 1^st Amendment to our constitution reads, in part, "Congress shall make no law... abridging the freedom of speech, or of the press..." While that right has never been absolute, the language of the text and the case law which has followed hold high the burden on the government when attempting to act against journalism. This is partially because journalism and whistleblowing like WikiLeaks is actually a social benefit. Democracy only works in the world of perfect information: every voter has all the information he/she needs to make the best choice in the voting booth. However, without things like the Pentagon Papers or WikiLeaks, voters would have little knowledge of what the government is doing. Thus, there needs to be a vocal critic of the government, ready to report mistakes and to publish information otherwise unavailable to voters.

We as a people should condemn the actions and statements of our politicians and corporations as attempts to silence a legitimate whistleblower. Our government and our people must apply the principles of our founding to be viewed legitimately abroad and to protect our liberties at home.