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

By Andrew Cohen
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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?

Because the ACLU is a customer of Verizon Business Network Services (VBNS), and because DNI Clapper confirmed the authenticity of the Section 215 order directed at VBNS that was revealed last week, standing isn't likely to be an issue in this lawsuit. We know that right now, and for at least the past seven weeks -- and perhaps even the last seven years, according to members of Congress -- the government has been logging the calls that go out of and come into the ACLU's offices. In the surveillance context, standing is often difficult to establish because government secrecy prevents most people from ever learning that they've been surveilled. But in this case, we do know.

As far as I can tell the Supreme Court has not (since long before 9/11) ruled on the merits of the nation's domestic surveillance laws -- and the lower courts have rejected those challenges largely on procedural grounds. What makes you think it will be different now with this extraordinarily conservative Court? Where is that fifth vote you need? What's the core of the legal standard you want the courts to apply?

The staggering revelations over the past week have exposed the most expansive domestic surveillance program ever in this country -- perhaps ever in any true democracy -- and the indiscriminate collection of Americans' call data clearly violates the Fourth Amendment's requirement that all searches and seizures be reasonable. In United States v. Jones -- decided by the Supreme Court last year -- five members of the Court endorsed the proposition that the acquisition of location data from a GPS device over a four-week period constituted a Fourth Amendment search. In our view, Jones has direct application to the kind of surveillance at issue here.

You remind us that the Fourth Amendment protects against unreasonable searches. What specifically is unreasonable about the government logging vast quantities of metadata, call logs, without regard to the content of the conversation? In other words, is it the act of surveillance itself you find objectionable under the Fourth Amendment? Is it the way it is done? Is it something else? I'm trying here to get you to flesh out why you think this layer of surveillance, as opposed to the surveillance of actual calls, violates the Fourth Amendment.

The short answer is that the government can learn a great deal about us without ever listening to our calls. The "metadata" program that's been implemented under the Patriot Act tracks every location we visit, every person we talk to on the phone, the time of each call, and the length of every conversation. As we observed in the complaint we filed on Tuesday, that kind of information can readily be used to create a "comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations."

I am struck by recent polls which suggest some degree of acceptance by the American people of this sort of surveillance. Why are these types of polls irrelevant as a matter of law when dealing with constitutional protections -- and yet so important as a matter of politics?

Polls offer a snapshot of the political moment, but they leave out crucial background about how that moment arrived. It's important to remember that the government claimed for itself this vast and intrusive authority without the opportunity for the governed to give their consent. The Section 215 surveillance program relies on secret courts approving secret applications in secret orders based on secret interpretations of what is -- as it must be -- a public law. The legitimacy of surveillance laws can only result from an informed public debate about their authority, parameters, protections, and effectiveness. In the absence of that debate, the Constitution demands that the courts check executive abuses so that political authority can be restored to the people in which it ultimately resides.

How exactly is this program different from the program implemented for a while by the Bush Administration? And were you surprised by the extent to which Congress rallied around the executive branch last week in defense of the surveillance program? If the courts refuse to intercede on the merits, and tell the ACLU to seek relief in Congress, how would you like the law to change?

There is less difference than meets the eye between the Bush Administration's claims to broad surveillance powers and President Obama's. Both administrations' surveillance activities exceeded the limits set by statutory law. Both administrations failed to inform the public of the civil liberties it was being forced to surrender in the name of national security. What Congress must do now is compel the administration to publicly explain the kinds of spying powers it thinks it needs, and why less intrusive and less secret methods would not be sufficient. It should also ensure that surveillance authorities build in robust protections of Americans' personal information.

Anything else you think is important?

In his recent speech at National Defense University, President Obama made a compelling case for the democratic necessity of bringing the nation's wartime approach to terrorist threats to an end. That necessity applies with equal force in the context of domestic surveillance. Just as President Obama belatedly acknowledged the long-term consequences of short-sighted policies governing the use of drones and other lethal force abroad, there are creeping but grave consequences to a democracy that surrenders its liberties one phone call at a time. Nobody chooses to live in a surveillance state, but a malfunctioning democracy can produce one. Restoring constitutional dignities to their historically privileged role in our system is the best way to defend it.

This article available online at:

http://www.theatlantic.com/national/archive/2013/06/a-q-a-with-the-aclu-on-its-lawsuit-over-nsa-surveillance/276875/