On Monday U.S. District Court Judge Richard Leon ruled that the NSA surveillance program was unconstitutional. The gist of his ruling is that collecting data on the telephone calls of every American violates the Fourth Amendment protection against unreasonable search and seizure. It should be pretty obvious to most Americans that collecting data in this way is not compatible with the values and laws governing our democracy, but it is still good to have that confirmed by a federal judge.
The ruling itself is interesting, but the question of how any administration, Democratic or Republican believed that surveillance of that kind was, or should be legal, is more significant. Edward Snowden's name is well known, as he was the one who drew attention to this violation of the rights and privacy of millions of Americans, but the names of the probably thousands of Americans who knew of this policy and said or did nothing are still unknown. Those are the people, not Snowden, whose decisions and conduct have weakened our country.
It is not, however, altogether fair to blame these mostly middle and lower level officials, employees and contractors when there were much bigger forces contributing to the ubiquitous NSA surveillance. The surveillance program, to a great extent, arose out of the confluence of two major developments: the response to the terrorist threat following September 11, and the evolution of technology in recent years.
September 11 is now more than 12 years in the past, making it difficult for some to remember how shocking and terrible those events were. It is nonetheless notable that the Bush administration did not take a lot of time to begin putting in place the structures which have now become the surveillance apparatus. President Obama, for his part, has continued or increased the intensity of these policies. The horror of September 11 should not be forgotten, and cannot be forgotten by those of us who saw the planes hit the buildings and heard the buildings fall even if we were lucky enough to walk away from Lower Manhattan that day.
Nonetheless, our constitutional rights are worthless if they do not protect us during times of crisis and threat. The threat of terrorism is real, but so is the constitution and our rights as citizens. Using the threat of terrorism to implement such broad brush constitutional violations is cynical, lazy and undemocratic.
The political climate following September 11, when concern about terrorism briefly for some, and not so briefly for others, trumped democratic rights and even common sense, was not on its own enough to usher in a surveillance program on the scale of what the NSA has done. The new technologies over the last decade or so have also made this possible. Twenty years ago monitoring the phone habits of every American would have been an extremely burdensome task. Forty years ago, it would have been insurmountably difficult. Today, the technology exists to make this much easier. This means both that citizens and their representatives should be even more vigilant about protecting our rights and defending the constitution. Unfortunately, that has not been the case in recent years.
The technology not only makes widespread surveillance easier, but it makes it very tempting for the U.S. government. Just as ordinary citizens can through, for example, Facebook or Google, learn about the activities of old or former friends, without them knowing about it, the government can do the same, but on a much larger scale. Those of us who would have expected that the U.S. government not conduct itself like a bored teenager or an employee wasting time at work, now need to adjust our expectations.
Judge Leon's decision may be obvious, but it is the right one. The question of Snowden's innocence or guilt and efforts to make this a story about his alleged crimes rather than the massive constitutional violations by the government, seem to have gained little traction. The question of whether the government will, or even can, stop the surveillance is considerably more important.
Although security concerns, and technological breakthroughs help explain the surveillance program, these explanations only go so far. The surveillance also had a life of its own. Once the technology existed, it probably seemed natural for the government to start gathering information on some people's calls. Quickly it became clear that could be expanded to include more people, and that more kinds of data could be gathered. The program ultimately emerged not because it was essential for security, although those rationales are always easy to create, but because the U.S. couldn't help itself. Once the technology existed, it was easier to justify continued expansion of the programs than to stop them when a real, but ambiguous line was crossed. The failure of that to occur is a failure for which the whole government is responsible.