We Have Sacrificed Our Liberty to the Surveillance State

(This post appeared in The Recorder and the Huffington Post on Nov. 20, 2014)

What are we so afraid of?

It's easy to sound crazy when you start to talk about the United States' sweeping surveillance program. It could be a conspiracy theorist's fantasy. But in 2013 former NSA analyst Edward Snowden brought this system and its abuses to the attention of journalists, and now we all know it's real.

"I discovered that there were programs of mass surveillance that were happening beyond any possible statutory authority. ... These were things that never should have happened," Snowden tells Harvard Law professor Lawrence Lessig in an interview from Oct. 20.

And while we are engaged in this sweeping surveillance program, the press is suffering an unusual degree of suppression. With more whistleblowers prosecuted under the 1917 Espionage Act during the Obama administration than under all previous administrations combined, journalists face charges for not revealing sources. When Snowden went to the press he engaged a constitutionally protected check on his own judgment by asking journalists to look at the information and to use it wisely.

So maybe now what seems crazy is so few people are talking about it.

Why? Maybe some liberals are reluctant to criticize the Obama administration for fear of sounding like right-wing racists. But where are conservatives on First and Fourth Amendment freedoms and overreach of government? Conserving the Constitution is perhaps the most patriotic act, but they seem reluctant to defend these basic rights. Or maybe it's because the surveillance apparatus is so complex, it's hard to know how to respond. Some seem resigned to it. Some say, "What harm does it do to be watched, if I'm not doing anything wrong?"

If the police walked uninvited through your door to go through your papers, read your mail, take notes on everything you own, listen to your kids' phone calls, you would make a fuss, I wager, even if you weren't doing anything wrong. Now, it seems, asserting privacy as a right is akin to an admission of guilt. It hasn't always been so.

Snowden says to Lessig:

"... This is one of the reasons we have the prohibition against unreasonable seizure. We don't say: the police can go and search through all of our houses, take everything that they want, but then simply not use it. Or just make a note of everything that's in our house but not take it because it's that - that reduction in our liberty, that reduction in our freedom, that reduction in our power relative to our state that is the real concern."

We must re-assert our right to privacy.

It's not OK for our government to monitor us, collect our personal email and texts, to track us. It infuses us with an insidious fear of reprisal, inhibits critique, stifles creative work and causes us to restrict ourselves at the edges of what we dare think and say to one another. Why are we now ceding this hard-won freedom to an unchecked security force? This reduction of our power relative to the state is a signal that our democracy is in peril.

We have permitted these broad constitutional violations under the guise of keeping us safe. But have terror attacks been prevented by this surveillance? In fact, it has been said that the sheer quantity of information swept up hampers true, specific investigation of very real threats.

It is "... a system whose reach is unlimited, but whose safeguards are not," Laura Poitras quotes Snowden in her documentary Citizenfour.

The balance has shifted and the few in control have much to lose. The government now has an irresistible power. There are billions of dollars to be made in security contracts, campaign donations from security firms and rotating lobbying jobs. But this is also true: We have an obligation to govern our government.

"Snowden did what he did because he recognized the NSA's surveillance programs for what they are: dangerous, unconstitutional activity. This wholesale invasion of Americans' and foreign citizens' privacy does not contribute to our security; it puts in danger the very liberties we're trying to protect," Daniel Ellsberg wrote in the Guardian in June of 2013.

"The question of whistle-blowing -- when to stand up -- is really one of 'Do these checks and balances still function?' It's about allowing the public a chance to participate in democratic processes in order to play their part in determining the outcome," Snowden tells Lessig.

Constant surveillance without accountability is a thunderous breach of our Constitution and the natural rights it seeks to protect. Freedoms of privacy, speech, of the press and association must be articulated and exercised. It is impossible for a free-thinking, democratic society to function without them.

"I took an oath at the Central Intelligence Agency," Snowden says to Lessig, "that oath was to, to protect the Constitution against all enemies foreign and domestic. And that's important to remember, because that's critical to the quality of our governance, if you only look outward we have this sort of inevitable slide, this inevitable slow corrosion where generation after generation we lose a little bit of our freedom, a little bit of our liberty that we inherited."

Citizenship confers responsibility. Our checks and balances have been broken. No one is holding our security machine accountable. It's going to have to be us. We mustn't look away. We have to rein in these programs, establish transparency and elect ethical, technologically literate representatives.

Ellsberg wrote:

"... with Edward Snowden having put his life on the line to get this information out, quite possibly inspiring others with similar knowledge, conscience and patriotism to show comparable civil courage -- in the public, in Congress, in the executive branch itself -- I see the unexpected possibility of a way up and out of the abyss."

This is possible only if we awake and demand it.

Watch Lessig's interview with Snowden here.
http://youtu.be/o_Sr96TFQQE

See the documentary Citizenfour.

"In a democratic republic," Snowden reminds us, "the government draws its legitimacy from the consent of the people."

What are we so afraid of?