Once again, our nation is grappling with a false choice being presented to us by the media and intelligence officials: In order to be safe, we must be willing — in President Barack Obama’s words — to accept “modest encroachments” on our civil liberties.
These claims are being advanced in the wake of the most sensational revelations about intrusive, and potentially illegal, government surveillance activities at home since the Watergate era.
I have noted numerous times throughout my career in public office my reverence for our Constitution and my admiration for the wisdom displayed by those who drafted it and argued for its passage. As we renew the debate over the almost incredible power and implications of the surveillance activities that are now in the news, we all would do well to remember what Alexander Hamilton noted in Federalist No. 8:
“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”
With those words, Hamilton not only describes his own time, but post-9/11 America as well.
According to press reports, we are subject to the collection of phone call metadata from every American. The harvesting of To, From and Bcc data from the emails of Americans. The blanket targeting of encrypted emails or encrypted “cloud storage” data repositories of Americans. The targeting of anyone using Tor (an online anonymization capability). These are just the revelations made to date by the Guardian and The Washington Post, among others.
The Electronic Frontier Foundation, analyzing how the National Security Agency is apparently utilizing this data, said on its website: “In sum, if you use encryption they’ll keep your data forever. If you use Tor, they’ll keep your data for at least five years. If an American talks with someone outside the U.S., they’ll keep your data for five years. If you’re talking to your attorney, you don’t have any sense of privacy. And the NSA can hand over your information to the FBI for evidence of any crime, not just terrorism. All without a warrant or even a specific FISA order.”
Over the last decade, multiple individuals in the executive branch — and a few in Congress, including me — have warned repeatedly about how the radical over-reach of these programs was undermining the very foundations of our republic, even as the mass collection activities were not making us any safer. And that is the most important point: If investigators are following the Fourth Amendment probable cause guidelines, they will do a better job. Undisciplined fishing expeditions have not made us safer. Someone who recognized this fact and tried to prevent such excesses, former NSA executive Thomas Drake, was rewarded for his patriotic whistle-blowing by being prosecuted by the Department of Justice.
In Drake’s case, he and a team of NSA colleagues had actually developed a relatively cheap, very effective and privacy-compliant way of getting the kind of terrorism-related data our government needed to fight groups like al-Qaida.
Unfortunately, his discovery angered NSA’s senior management, which had invested huge sums of taxpayer money in a system that did not work and was ultimately canceled. Drake and his colleagues reported all of this to then-House Intelligence Committee chairman Porter Goss — who did exactly nothing.
Drake and his colleagues then did what we tell government employees with concerns about waste, fraud and abuse to do in these cases: report it to the Pentagon’s Inspector General. Drake did, the IG validated his claims … and then proceeded to turn him and his colleagues over to the Justice Department on bogus charges. In the end, the criminal case against him was dropped but his career in government was destroyed.
Soon, I will introduce legislation that would repeal the laws that brought us our current “surveillance state”: the Patriot Act and the FISA Amendments Act. My bill would restore the probable cause-based warrant requirement for any surveillance against an American citizen being proposed on the basis of an alleged threat to the nation. And it would, for the first time, provide genuine legal protections for the Thomas Drakes of the world.
If we hope to restore and preserve the republic that Hamilton, Patrick Henry and other Founders risked their lives to create, we must end the industrial-scale surveillance and perpetual war mentality that has been foisted on the American people in the name of “national security.”
Rep. Rush Holt represents New Jersey’s 12th Congressional District and is the former chairman of the House Select Intelligence Oversight Panel.