Americans are told that the United States is a nation governed by laws, not men. We praise our peaceful transitions of power and our checks and balances. But while we are not ruled by the arbitrary whims of individuals, our laws are not actually what dictate our government’s actions. Instead, we are a nation governed by fear of terrorism. This has led us down a foggy road, opaque with tactically questionable and illegal National Security Administration (NSA) surveillance. Now, our best chance of bringing transparency back to the U.S. is to work within the political system to bring real change to law and policy.
Recent leaks, information releases, and other revelations have shown that Americans have no information about the actions of our own government. Specifically, the NSA’s "metadata’" program of compiling massive databases of information on both domestic and foreign communications is inconsistent with the Foreign Intelligence Surveillance Act (FISA), which was passed to prevent the executive branch from engaging in over-broad domestic surveillance. In order to achieve such a database, the NSA has co-opted complicit telecommunications companies, as well. All the metadata collected could not possibly be relevant to any specific investigation, allowing the executive to unlawfully engage in the collection of personal information on U.S. citizens.
FISA itself is flawed as well. The U.S. legal system is designed to be adversarial: two opposing parties attempting to point out holes in the other’s arguments. In theory, this process allows for the truth to be discovered by the judge or jury. The FISA court does not generally work this way, however. The government presents classified information to the court, with no effective oversight beyond that the government has “simply dotted its i’s and crossed its t’s.” Thus, with no opposing counsel or public scrutiny, the nation’s national security apparati are allowed to operate unchecked by any truly independent body or individual. We now know that in October 2011, U.S. District Judge Bates wrote that the NSA acquires information with “substantial intrusions on Fourth Amendment protected interests.” Internal executive branch checks are not constitutionally or democratically sufficient oversight for programs such as surveillance and drone operations.
Those who point out the dangers of this lack of transparency and public scrutiny of our surveillance programs are not simply clinging to outdated notions of rights and liberties. In the name of the American people, the NSA has also hacked into the United Nations and the European Union. Along with these supra-national organizations, our spying programs have strained our relationship with Germany, a key economic ally. Perhaps more troubling, the very structure of these surveillance programs give officials no sufficient ability to separate purely domestic communications from those which involve non-U.S. citizens. In fact, the Drug Enforcement Administration (DEA) is using NSA-like legal tactics to collect NSA-like metadata for domestic law enforcement purposes.
America is now living in a time period when citizens are being knowingly surveilled. This is Jeremy Bentham's Panopticon — an institution with a ubiquitous and controlling gaze. Michel Foucault pointed out that living in knowing surveillance leads humans to internalize the institutional rules — that is to say, we begin to act as our surveillers wish us to act. We grow numb to the invasions of personal privacy and accept our role within the state apparatus. This does not sound like a democracy where citizens exert ultimate control and authority over the functions and actions of the government.
I wish to alter Julian Assange’s statement, “privacy for the weak and transparency for the powerful,” to say instead, privacy for the people and transparency for the state. This statement reflects a truth which can be inferred by the philosophy, structure, and very texts of our Constitution. Regarding privacy for the people: the Fourth Amendment protection against unreasonable search and seizure, the Fifth Amendment right against self-incrimination, and the Ninth Amendment protection of personal freedoms. Regarding transparency for the state: the First Amendment freedom of the press, the president’s Article II duty to report on the state of the nation, and the democratic requirement that the people must make informed decisions when voting for or against government officials. Privacy for the people and transparency for the state are requirements to ensure government is subservient to the people who established it.
Whistleblowers like Chelsea Manning, Edward Snowden, John Kiriakou, and others have taken extralegal steps to bring government abuses to the attention of the public. These revelations have not yet inspired mass action in the American people — save, perhaps, for the Restore the Fourth movement . Thus, the American people must be mobilized in order to create a sustained push for sufficient transparency in governance to ensure the protection of our constitutional rights. As Congress returns to work for the fall session, citizens must exponentially increase our activism toward forcing a revolution in how the government conducts its surveillance activities. Without constituents in the streets and anger in their inboxes, our representatives have no incentive to challenge the current national security structure.
But we cannot continue to only work on the outside looking in. We must work within the political system in order to effectively bring change to the U.S. The wholesale structural change needed in the federal government to roll back the privacy abuses of the past cannot come without more allies within the halls of power. Think to yourself, which movement has brought more change to the U.S. political landscape: the Tea Party or Occupy Wall Street? The Tea Party did, by recognizing how to play the game of politics to get what they want. As such, formalized organizations which can either put forth or endorse political candidates for federal office must be created and supported broadly.
Walking down the opaque road of secretive governance and diminished liberty should strike each of us as inherently un-American. But you can’t challenge the government unless you challenge yourself. You can’t change the country unless you change yourself. As Cory Booker said in a speech in Washington on Saturday, democracy is not a spectator sport. We each must materially support nationwide organizations which have the structural ability to move Washington toward a more perfect America. In the words of Lt. Ehren Watada, this is an obligation, not a choice.