A Sad, Colossal Setback for the Bill of Rights

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. When, in the battle of Germantown, General Washington's army was annoyed from Chew's house, he did not hesitate to plant his cannon against it, although the property of a citizen. When he besieged Yorktown, he leveled the suburbs, feeling that the laws of property must be postponed to the safety of the nation.

Jefferson to John Colvin
September 20, 1810

The U.S. Senate's decision to continue permitting the NSA to monitor calls of millions of Americans (335 million to be exact) is a shameful violation of the Bill of Rights. Thanks to whistleblower Edward Snowden, we now know that the NSA has tapped into the trunk lines of all the major internet providers, from Google to Apple, and that it listens in on hundreds of thousands of "conversations" on email, Facebook, and audio cell phone communications. The NSA engages in this wholesale brand of surveillance without warrants or court orders. If you invoke key words--"terror, bomb, Taliban, etc."--your communications might trip wires in our security agencies, and get your entire life monitored without your knowing it, and in direct violation of the First, Fourth, Fifth, and Ninth Amendments to the Constitution.

When Snowden and courageous journalists revealed that these illegal searches were taking place, the NSA lied, denied the allegations, tried to destroy the reputations of the individuals in question, and eventually charged Snowden under provisions of the Espionage Act.

On November 18, 2014, the U.S. Senate voted to maintain the existing surveillance law. Sixty votes were needed to reign in the domestic spying of the NSA, and the vote to proceed with the bill failed at 58-42. All of the nay votes were cast by Republicans. The new Senate Majority Leader Mitch McConnell said, “This is the worst possible time to be tying our hands behind our backs. The threat from ISIL is real. It’s different from what we faced before.”
 
The gravity of this decision can hardly be exaggerated. It was one thing to permit such illegal surveillance when the nation, including most members of Congress, did not really know what the NSA was up to. But now that we know--and nobody refutes Snowden's allegations, which constitute undeniable proof of official wrongdoing--one would expect any liberty-loving American, any liberty-loving member of Congress, to have deep misgivings about such surveillance, and to demand of the NSA and all other information and security agencies or sub-agencies within the national government, that they prove to all of us that such violations of the Bill of Rights are necessary to American security.

They cannot do this, except to invoke whatever is the latest and most convenient "threat" to the national security.

As the passage from Jefferson's letter to John Colvin indicates, even our greatest civil libertarian understood that there may be times when "a strict observance of the written laws" must yield to emergency conditions, but do we really believe that the rise of militant Islam is a sufficient reason to permit wholesale surveillance into the lives of American citizens. Do we need that broad a net to tease out improbable terror plots. When Snowden revealed the extent of the NSA spying, the immediate "defense" of such practices was that they had actually prevented a number of terror attacks on the United States. It is simple enough to say such a thing, but the NSA was subsequently unable to name a single credible threat that had been quashed thanks to this level of spying.

In other words, our government is counting on our relative indifference--"Hey, I got nothin to hide!--and our dark fears--"Hey, if that's what you have to do to keep us safe, have at it!"--to subvert the Constitution and create a creepy, dangerous, and outrageous Surveillance State.

Texas Senator John Cornyn said that the reform bill, taht would have restricted some of the worst aspects of NSA domestic spying, "basically takes us back to a pre-9/11 lack of capacity to identify terrorists making telephone calls in the United States. I think that sort of unilateral disarmament would be bad for the country."

Really? Adhering to the Bill of Rights represents "unilateral disarmament" of the United States in the face of the terror threat?

It's one thing for mealy-mouthed Senators to cave in to official lies and a paranoid narrative about American security, but where is the citizen outrage about the greatest damage to the Bill of Rights of the last century?

Jefferson opposed the 1798 Alien and Sedition acts and called them "worthy of the 8th and 9th century." Does anyone believe Jefferson would regard this sort of massive, even universal intrusion, not on the communications of foreign nationals, or non-American terrorists, but on the entire population of the United States, as an acceptable sacrifice for national security?

The question is simple. Is there no other way to protect American security than to throw out the Bill of Rights? Have we now acceded to Dick Cheney's proposition, that if we knew what he knows, we would cheerfully accept a security regimen that makes Orwell look like a Rotarian?

You decide.

Further Reading:

Jefferson and Civil Liberties: The Darker Side
by Leonard W. Levy

The Bill of Rights: Creation and Reconstruction
by Akil Amar

No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State
by Glenn Greenwald