by Jeremy Leaming
The apologists for the nation’s ever-growing intelligence apparatus continue to ratchet up their rhetoric over the actions of the whistleblower Edward Snowden, but one of the nation's oldest civil liberties group, the ACLU, is not dissuaded, taking more action to try and bring clarity and accountability to a vast and unwieldy spy network.
The ACLU lodged a lawsuit against the NSA’s mass surveillance of phone calls, “charging that the program violates Americans’ constitutional rights of free speech, association, and privacy,” as ACLU Legal Fellow Brett Max Kauffman reports.
The lawsuit, Kauffman notes, follows The Guardian’s disclosure of an order from the Foreign Intelligence Surveillance Court granting the NSA power to collect phone information from millions of Verizon customers. Later the newspaper reported on a program that the NSA and FBI are using to capture and collect information from users of the Internet, e-mail, video chat, audio and other actions.
In its lawsuit against the surveillance of phone calls, the ACLU says, “As an organization that advocates for litigants to defend the civil liberties of society’s most vulnerable, the staff at the ACLU naturally use the phone – a lot – to talk about sensitive and confidential topics with clients, legislators, whistleblowers, and ACLU members. And since the ACLU is a VBNS customer, we were immediately confronted with the harmful impact that such broad surveillance would have on our legal and advocacy work. So we’re acting quickly to get into court to challenge the government’s abuse” of a section of the Patriot Act that makes it easier for the spy agencies to obtain permission to collect more information on Americans.
The ACLU’s action is noble work and focuses on what matters: are national security concerns consolidating power in an ever-growing intelligence apparatus at the cost of liberty? The pundits that taking to the airwaves and blogosphere to sanctimoniously blast Snowden are laregely tiresome and irrelevant.
For example, CNN’s legal analyst Jeffrey Toobin knocks Snowden as a “grandiose narcissist who deserves to be in prison.” Toobin groused that there’s right ways to go about challenging the powers-that-be and well, if you don’t follow those strictures you’re a criminal, which is similar to what constitutional law expert Geoffrey R. Stone wrote in his piece for The Huffington Post. Unlike Toobin, Stone is a one of the nation’s leading experts on constitutional law, always worth paying attention to.
Stone focuses on why Snowden’s actions were unlawful – Supreme Court case holds that “not only can government employees constitutionally be required to agree not to disclose classified information, but they can even be required to agree, as a condition of employment, not to publish ‘any information or material relating to … intelligence activities even after they leave the government service without ‘specific prior approval.’ As the Court emphasized an employee’s disclosure of ‘material relating to intelligence activities can be detrimental to vital national interests.’”
Snowden should have gone to a “responsible member” of Congress with his concerns, Stone writes. Again, a similar line was given by Toobin. It may not be as simple as Toobin and Stone make it out to be.
In a piece for Salon, Kevin Gosztola cites the story of Thomas Drake, who tried to “expose, fraud, waste, and abuse and illegality related to a private boondoggle at the NSA, by going to an inspector general. But the powers-that-be turned the tables and the administration, surprise, launched a leak investigation of Drake.
Gosztola also hit on something the apologists of the intelligence community gloss over. First, the U.S. “has a rampant over-classification problem when it comes to information, especially that which pertains to the operations of national security agencies, and how senior officials in government or aides of Congress people make unilateral decisions to release secret information all the time that they maybe should not be disclosing because it exposes no crimes or illegality but merely advances a political agenda.”
President Obama, after The Guardian and Snowden forced the issue, said he welcomed a debate on trade-offs that must be made between constitutional principles and national security interests. But the president knows better – a debate is unlikely to unfold over an incredibly secretive process, and one that does not seem to bother a lot of Americans. This will pass soon enough, and the federal government will focus on its central interests – going after a whistleblower and protecting, enlarging the nation's intelligence community.