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Geoffrey R. Stone

Geoffrey R. Stone

Posted: May 19, 2006 04:03 PM

Freedom and Responsibility


What is the responsibility of individual citizens to play an active role in preserving our freedoms? This is an apt moment to pose this question. In recent months we have seen public revelations of two previously secret NSA surveillance programs. The first, disclosed in December, concerns NSA interception of the contents of thousands, perhaps hundreds of thousands, of international phone calls and emails involving American citizens. These interceptions are being undertaken without either probable cause or a judicial warrant and almost certainly violate federal law.

The second program, disclosed last week, concerns alleged NSA requests to the major American telephone companies to turn over to the NSA the phone records of millions of American citizens, enabling the NSA to track who calls whom and when. Because this program, if it exists, does not involve disclosure of the contents of the phone calls, it would not appear to violate federal law.

Whether or not such programs are unlawful or unconstitutional, they illustrate a serious problem in the way the Bush administration is responding to the war on terrorism. Whether the United States government should be intercepting phone calls of American citizens or collecting their phone records are questions of considerable moment. Although such strategies may be useful tools in combating terrorism, they make possible the collection of staggering amounts of previously private information about who we know, with whom we speak, and when.

Whether the United States should institute such programs and, if so, subject to what safeguards on use, storage and access, are properly questions for Congress. There is no reason why such critical issues of public policy should be resolved unilaterally -- and secretly -- by the president. Even if such surveillance and data collection are justified, they must be subject to strict regulations and both congressional and judicial oversight. There must be clear restrictions to ensure that the information is used only for the intended purpose, and not to harass, intimidate, blackmail, and embarrass American citizens because of their religious, political, sexual or other personal beliefs or activities.

Almost surely, the Republican-controlled Congress will do nothing to take the president to task for repeatedly overreaching his authority and bypassing the separation of powers. It will not take action in part because it does not want to embarrass the president, especially with elections around the corner, and in part because there is no public clamor demanding it. Indeed, most Americans seem largely untroubled by such surveillance. The all-too-common refrain is, "I have nothing to hide, so why should I care if the government tracks or listens to my phone calls." The implication is that if most Americans aren't upset, then there's no reason to worry about the administration's actions. Nothing could be farther from the truth.

Throughout our history, Americans have silently approved serious, sometimes grievous abuses of civil liberties, only later to bemoan their failure to act responsibly. During the Cold War, the public failed to challenge the witch-hunts of Joseph McCarthy and the House Committee on Un-American Activities; during World War II, most Americans sanctioned the mass internment of Japanese-Americans; during the post-World War I Red Scare, the public cheered on the deportation of thousands of innocent aliens; and during World War I, most Americans approved the criminal prosecution of thousands of individuals for criticizing the war or the draft. After every one of these episodes, the public came to acknowledge its error and promised not to repeat the mistake again.

It is quite natural, of course, for us to want to defer to presidential assertions of authority in times of danger. We want to be safe, and presidents promise to protect us. But as citizens of a self-governing society, we bear the responsibility to think seriously about our freedoms. It is our responsibility to learn from the blunders of the past. If we are careless about our freedoms, we risk losing them not only for ourselves, but for our children. As the great judge Learned Hand once warned, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."