The Green Party Stand On NSA Spying

It has been a few days now since the vast extent of the government's spying on U.S. citizens has been revealed. And several polls have now shown that Americans are divided over whether it is a good thing (that protects this country) or a bad thing (that invades the constitutional rights of American citizens). And the same goes for the two major political parties.

There are members of both political parties in Congress that are outraged by the extent of the spying (in spite of the fact that most of them voted to let it happen), and there are members of both parties that think the spying on American citizens is necessary to protect the country from terrorism. And this extends to the rank-and-file members of those parties. In fact, it gets even weirder when it comes to the views of those base voters -- with a majority of Republicans thinking it was Ok as long as Bush was president, and a majority of Democrats thinking it is Ok now that Obama is president.

It is obvious that neither of the two major political parties has a unified and coherent position on the NSA's spying on American citizens. But that lack of coherence and unification does not extend to the Green Party of the United States -- and they have released their party's position to the public. Here is that position, as enunciated by Shahid Buttar (Green Party Shadow Cabinet Director of Civil Rights Enforcement):

The (UK) Guardian's recent publication of a previously secret court order authorizing dragnet surveillance of millions of Americans without any pretense of justification has confirmed concerns raised by civil libertarians for years.

Since first taking office in 2009, the Obama administration has repeatedly extended the USA PATRIOT Act, including the overbroad section 215 cited as the basis for the FBI surveillance approved by the secret order disclosed by the Guardian. In light of Congress’ recent decision to extend the law permitting even worse abuses by the NSA for another five years, and the Supreme Court’s outrageous decision in Clapper v. Amnesty Int’l turning a blind eye to dragnet domestic surveillance, the document is also a clarion call for both mass outrage and immediate congressional action for long overdue sunlight at the National Security Agency.

The document is disturbing because, in a single swoop, it authorizes not just the wiretapping of a single individual, or a single organization, but all of the customers of a single telecommunications company. The order reinforces its own secrecy, immune from public or congressional oversight, violating core tenets of both Due Process and the Fourth Amendment at once.

Surveillance run amok

The first thing to take away from this disclosure is this sheer scale and scope of FBI and NSA spying on Americans. Senators Ron Wyden (D-OR) and Rand Paul (R-KY), like the Bill of Rights Defense Committee and various allied organizations, have been raising alarm since even before the 2008 amendments to the Foreign Intelligence Surveillance Act (“FISA”).

Along with Senator Mark Udall (D-CO), Sen.  Wyden has suggested in his capacity as a member of the Senate Intelligence Committee that Americans would be outraged if we knew about secret government interpretations of the PATRIOT Act’s controversial Section 215 authority. The law is bad enough without being contorted to allow surveillance even beyond its meager limits, but that’s exactly what the document leaked to the Guardian demonstrates: a single wiretap order allowing the FBI to spy on millions of law-abiding Americans at once, without even a pretense of the individualized suspicion long required by the Constitution.

Wyden has also sought information about how many Americans have been impacted by NSA spying overseen by the same FISA court that approved the FBI surveillance revealed by the Guardian. The answers would be laughable if they weren’t so disturbing: the NSA claimed it couldn’t answer a quantitative question because it would somehow violate the privacy of individuals under surveillance, and also that figuring out the answer to Wyden’s inquiries would simply be impracticable.

The NSA’s spin moves before Sen. Wyden’s attempts at oversight insinuated what the Guardian’s disclosure confirms: that our government’s most secret agency is run amok, squandering billions of dollars while assaulting America from our own shores, using our own money.

While outrage is appropriately escalating at the scale of FBI and NSA abuses, three angles to this controversy have remained muted in most of today’s commentary.

Whistleblowers and transparency

First, what little we do know about the NSA’s program is mostly gleaned from government whistleblowers, courageous individuals who have risked their careers to inform the public about secret abuses of our rights.

Many of them have faced prosecution, at unprecedented levels under the Obama administration, making even the Nixon administration look transparent by comparison. But the crackdown on whistleblowers is what enables abuses like the NSA’s to happen in the first place.

At this point, we must keep our eyes open for whatever investigation the Justice Department will launch into this leak, compounding its assault on the Associated Press with a witch hunt to uncover the source of the leak to the Guardian.

Judicial independence

Second, the leaked court order reveals the illegitimacy of jurisprudence that sticks its head in the sand rather than confronting vital social issues.

The constitutional standing doctrine articulated by the Supreme Court in Clapper vs. Amnesty International eviscerates judicial review, and enshrined the principle that the executive branch can commit any abuse under the sun, yet evade judicial review, as long as it does so in secret. The decision creates perverse incentives and could serve as a cornerstone in the further entrenchment of executive power going forward.

Similarly, the sheer breadth of the leaked order authorizing FBI surveillance confirms the inadequacy of secret courts. Courts exist to enforce our rights in the face of government abuses. That’s one of the central geniuses of the founding fathers and the system of checks and balances they constructed.

But when the decisions are secret, they stop being judicial in character. Law is built on mutual references among courts. When the law can’t reference itself, it stops being law, and emerges as something very different: in this case, a rubber stamp allowing any manner of dragnet violations impacting law-abiding Americans and our fundamental rights.