That is the concluding line of Demand your privacy, Eugene Robinson's Tuesday Washington Post column, written in response to the ruling yesterday by Judge Richard J. Leon that the NSA's gathering of metadata data on our phone calls is likely unconstitutional.
There is a great deal crammed into this column, the heart of which is these three paragraphs:
The theory is supposed to be that only by assembling a big enough “haystack” of data can the elusive “needles” be found: patterns of calls, movements and connections that signal a potential terrorist strike. In reality, though, what seems to happen is that our intelligence agencies get some tidbit of information through other means, perhaps a name or a phone number, and then sift through the NSA data for evidence of a plot.
This scenario is actually a targeted search for which the spooks should have no trouble obtaining a warrant. Storing all that communications data in-house seems more a convenience than a necessity. It saves the trouble of acquiring specific chunks of data as needed from the phone companies.
As I read the Constitution, though, it’s supposed to be inconvenient for the government to invade our privacy.
To read the Constitution any other way would in my opinion totally abandon the principles upon which the Fourth Amendment were based, which was a denial of easy access by the government to our papers, our persons, and our privacy, absent a warrant issued by judge on the basis of
probable cause, not the lesser standard of reasonable suspicion cited by former NSA Director Michael Hayden on a Sunday talk show.
Please keep reading. I have a lot of my own thoughts I would like to share.
We had I thought been down this ground before when the Army was found to be keeping data on Americans, especially those of us who opposed involvement in Vietnam. It was ordered to cease and to destroy the records that existed. Working from memory, some time afterward the Army was found to still be in possession of what it had already collected, that material stored at Fort Holabird in Baltimore.
Those that argue necessity to be able to reconstruct evidence trails later are no different than the New York City Police Department's justifications for stop and frisk, something also clearly in violation of the original intent of the Fourth Amendment.
To argue that 9-11 changed everything so that this is now necessary is to achieve what Osama bin Laden and Al Qaeda could not with their attacks - to overthrow our democratic republic by giving the government more power than granted it by the people of the United States.
To put it simply, to allow such reasoning to be the basis of government policy is to acquiesce in a police state.
Robinson understands this.
Unfortunately the chairs of the intelligence committees, Mike Rogers in the House and Dianne Feinstein in the Senate, apparently do not. I would suspect a similar problem from a number of Justices on the Supreme Court, although perhaps someone like Scalia might surprise us (although I am not holding my breath on that).
When General Hayden said on Meet the Press that
unreasonable search and seizure depends upon the totality of circumstances in which you find yourself
Robinson's response was
My circumstances, in their totality, are these: sitting on the couch, minding my own business. What am I doing to deserve an electronic stop-and-frisk?
To the NSA the answer is simple - you exist in a post- 9/11 world, and they have the technical capability to carry out such an electronic stop-and-frisk.
It does not matter that the information of what number I called, when, and for how long, is information surrendered by me for the privilege of making that phone call - the phone company has a legitimate business reason for that information. By that rationale the fact that I purchased anything using a credit card would justify the NSA or other government agency from accumulating all my purchases by date, time and place of purchase, and amount, stored with my credit card number, which it could peruse later at its leisure and oh by the way if it thought it found something go through the fiction of getting a warrant after the fact the probable cause based upon what should have been ruled an unreasonable acquisition of the information underlying the claim for the warrant. There has been a doctrine known as the fruit of the poisonous tree - if at any point in the investigative process a person's rights have been violated, all evidence that flows therefrom is deemed inadmissible unless one can prove inevitable discovery - my government students used to have to know this principle from Mapp v Ohio, to cite one example. But if the government can legitimately gather information in a dragnet process, then there is no poisonous tree and it can search at its heart's content.
Robinson says we should demand of our public officials and our communications companies that this cease: as he writes in his penultimate paragraph
We should let our elected representatives know that while domestic surveillance is currently deemed “lawful,” it is a betrayal of our traditions and values. We can let our phone and Internet companies know that we expect them to fight as hard as they can for privacy, not just in their legal arguments but also in using the most advanced encryption technology.
Except that will not matter if the process is still deemed legal, and if the government can demand as it did of the provider of a service used by Edward Snowden that the phone and internet companies turn over their encryption keys.
This should NOT be a matter of debate.
This should be bedrock constitutional principle.
That it is not, even in a Democratic administration, with a Democrat chairing the Senate Intelligence Committee, is an example of how little key public officials are committed to individual rights versus the supposed needs of the government.
Sunday was Bill of Rights day, the day on which Virginia's ratification of the first ten Amendments to the Constitution put them into effect, 3/4 of the states having approved them. But what does the rights contained therein mean if the government can rationalize violating them?
I do not agree with Robinson on one point - he says he is willing to stipulate that
the officials who conduct, approve and oversee the NSA’s spying are well-meaning patriots.
I am not.
To me to be a patriot is to fulfill the responsibility one assumes when one swears or affirms to uphold the Constitution.
An order to violate the Constitution is not a legitimate order, and should as much be disobeyed as we would expect an order to commit a war crime, a crime against humanity.
The actions of the NSA are crimes against the Constitution.
That some judges choose to rule otherwise merely indicates how far we have strayed from Constitutional principles.
Not for the first time.
I am as a student and sometimes teacher of American history, and thus can point at many previous examples where our Courts rationalized similar violations - one merely need think of the internment of those of Japanese background, some of whom were American citizens and not nationals of a nation with whom we were at war. The Korematsu decision is to my mind as much a blot on Americia's conscience as was Dred Scott, and I strongly suggest those interested in exploring read Justice Robert Jackson's dissent in that case.
What we have now is a pattern of governments violating the principles of constitutional protection to the point that one wonders if the proclamation of those rights in ratified amendments is now merely empty words.
I am disappointed that Judge Leon stayed his injunction. I would have hoped he placed the burden upon the government to seek a stay at a higher level. To do so it should be required to prove to a court that to allow the stay to remain would both (a) do irreversible harm (hard to argue when it could obtain the same information from the companies later should appeals be successful) and (b) that it had a high probability of winning the argument.
I would also hope the notion of state secrets which allow the government to stop legal processes by blocking access to information legitimate to the application of a legal case, criminal or civil, without having to disclose the specifics to a judge, also be found in violation of the very notion of due process of law, which is supposed to pertain whenever a person's life, liberty or property are at stake. Absent relevant information, the notion of a fair trial under the 6th Amendment also disappears.
And the dragnet approach to gathering information seems to violate the notion of freedom of association implied and previously upheld in interpretations of the First Amendment.
Yet again, as a teacher of government, I have to ask myself what is it I am teaching, if the clear intent and meaning of the Constitution can be so easily subverted?
If the ends - supposed security from threats, none of which have yet to have been demonstrated to be protected against by such methods - justifies the means, then the notion of the Constitution being an inviolable set of principles is nonsense, and we are no longer a government of laws but of whatever men are in positions of power, including the positions of judges who acquiesce in this nonsense.
So let me end as I began, which is how Robinson ended.
It is clarion call to us.
It requires that we be willing to speak up loudly now.
It’s simple: Either we demand our privacy — loudly — or we kiss it goodbye.
And if that privacy is gone, so is the very notion of liberty and of a democratic republic with rights the government is supposed to protect, not subvert.
It’s simple: Either we demand our privacy — loudly — or we kiss it goodbye.