A Q&A With the ACLU on Its Lawsuit Over NSA Surveillance

What to expect as the civil liberties watchdog goes back to court over secret spying


An NSA data-gathering facility currently under construction in Bluffdale, Utah (Jimmy Urquhart/Reuters)

New polls suggest that America is divided over the wisdom and the legality of the Obama Administration's newly revealed domestic surveillance programs. There are countless reasons for this, but one surely is that so many Americans are themselves divided, in their own minds, about what the rise of the surveillance state means for them, and what it portends for the future balance between "liberty" and "security" (whatever those words mean). Some people care deeply that the government is secretly sifting through phone records. Others care very little at all. And many are concerned but have neither the energy nor the will to do anything about it.

Part of this cognitive dissonance, let's face it, is in our collective DNA. Though we like to pretend otherwise, we are an easily distracted and contradictory people, full of hypocrisies and double standards that we are unwilling to admit to ourselves, let alone to each other. We say we cherish privacy, for example, but we fight for it only when its deprivation is so patent, so much an assault on our so-called "values," that we'd lose face by not objecting. Otherwise, in the name of security, or in the name of order, or even just in the name of expediency, we allow our cherished privacy, drop by drop, to be drawn from us.

So, as Jeffrey Goldberg pointed out last week, we cherish our EZ-Pass even though it allows transportation officials to track our movements. We flock to Facebook even though we know it shops our desires. We buy online and we put off for another day, like our credit card bills, the murky legacies of the "cloud" we leave behind. And as soon as some hack screams out "national security," we are game to give up more. After the Boston Marathon bombing, we rushed to declare that we were content with more public cameras tracking our every move. The cameras will now be there forever. The threat from two warped brothers, not so much.

Having come so far in a computerized world, having willingly given up our privacy in so many different ways, the civil libertarians among us should not be surprised that so many Americans, when confronted with the latest revelations about the administration's secret surveillance, merely shrugged and said "so what?" Compared to the personal and private information we freely share with corporations, compared to the privacy intrusions we tolerate daily when we fly or go to a hockey game or perform a Google search, what's the big deal about a government program that tracks call logs and the meta-data of telephone records?

Then there is the legal and political framework in which such policies are permitted to exist. As I wrote last week, there is little about the administration's program that ought to have come as a surprise to anyone. Congress long ago authorized such surveillance (and has defended it stridently over the past two weeks). The federal judiciary long ago indicated it would defer to the ministrations of the other two branches of government when it comes to "national security" (whatever that phrase means). What we are seeing here is, as Garrett Epps wrote earlier this week, the "hollowing out" of American law. It's outrageous. But it's definitely not new.

And then there are the structural underpinnings of such programs. Our "national security" endeavor hasn't just flooded our nation with millions of people, like Edward Snowden, who walk around with security clearance. It has institutionalized the concept of surveillance the way the Pentagon has institutionalized the concept of war. Even if President Obama wanted to scale back the nation's spy apparatus, he would find political opposition at every turn. And those Republicans who cry out for less government? They are the first to complain about reducing the budget for companies like Booz Allen, where "security means billions."

With all this in mind, I asked Jameel Jaffer, the director of the American Civil Liberties Union's Center for Democracy, to answer a few basic questions for me about the ACLU's new lawsuit challenging the constitutionality the administration's surveillance program. In its complaint, which you can read for yourself here, the ACLU contends that the government's domestic spying, and the statutes it is based on, violate both the First Amendment and the Fourth Amendment. Jaffer, and Brett Max Kaufman, a fellow with the ACLU's National Security Project, provided the answers below.

Some of the material below is precisely what you would expect the ACLU's tribunes to say in the days after they file a complaint like this against the government. Some of it is painfully true. And some of it strikes me as plainly inconsistent with what we know to be true about the way Americans live today. For example, I don't know which America Jaffer and Kaufman are referring to when they declare that "no one chooses to live in a surveillance state." I think the American people, sadly, have chosen in countless ways to live in such a state. And I think the fact that we have done so is likely to animate the legal and political debate as this important lawsuit proceeds toward its resolution.

Why now? Were you working on this type of lawsuit before last week's revelations about the Administration's surveillance efforts, or is this brand new? Would you have filed this anyway without the revelations? And is the idea that you now feel you can overcome "standing" objections by claiming that the ACLU is being directly impacted because its communications are being surveilled?

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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