You know you’ve fucked up when you manage to unite cannabis reform supporters, gun aficionados, American Muslims, environmentalists, libertarians and human rights workers in their antipathy towards you.
The National Security Agency has done just that. An eclectic group bound together only by their common dislike of being spied on for no good reason is suing the NSA and several federal officials in northern California. The suit alleges that the NSA and company has violated the US Constitution via its alleged dragnet snooping.
So congratulations, NSA – your stab at omnipotence has succeeded where almost every major American politician has failed: you’ve made a little slice of the country less divisive.
The group is spearheaded by the legal team at the Electronic Frontier Foundation (EFF), and one of their chief arguments asserts that the NSA programme violates the right to associate privately, free from government interference – something that's supposed to be protected by the First Amendment. They’re seeking to update the 1958 Supreme Court decision in an Alabama v. NAACP for the digital age.
The NAACP (National Association for the Advancement of Colored People) has been integral to civil rights and racial equality advocacy for decades. In that 1958 case, the country’s highest court found that the state of Alabama could not force the NAACP to disclose its membership rolls since doing so could possibly dissuade people from political activism.
Now, this group of plaintiffs is seeking to apply that same principle in the digital age. Instead of membership rolls, they argue, the government is collecting phone numbers.
Brandon Combs is the president of one of the plaintiffs – the California Association of Federal Firearms Licensees (Cal FFL). His group represents gun dealers, manufacturers, collectors, trainers and ranges.
When I asked Combs why the NSA would want to monitor his group, he mentioned the recent Internal Revenue Service (IRS) fuck-up, where IRS agents allegedly wrongly targeted conservative groups seeking non-profit tax status. It’s a stick commonly used by American conservatives to beat Obama with. But in the lawsuit, Combs is standing shoulder to shoulder with Students for Sensible Drug Policy (SSDP) and the Council on American-Islamic Relations (CAIR) – not exactly traditional bastions of anti-Obama American conservatism.
“When you can get a coalition together of folks like Greenpeace, EFF and Cal FFL, there’s definitely a social problem that needs to be addressed,” Combs says.
Gadeir Abbas, staff attorney for the Council on American-Islamic Relations.
Gadeir Abbas, the staff attorney for another plaintiff – the Council on American-Islamic Relations – argues that the NSA's snooping techniques had their basis in a programme initially designed to spy on American Muslims in the wake of 9/11. The Total Information Awareness Program was officially discontinued in 2003 after public criticism but Abbas argues that it remains operational, merely in secret and under a different name. He also says that its scope has been widened to monitor the US population more widely.
“The supporters of the programme had hoped to telegraph that this was only going to affect Muslims, people who have weird names or a different skin colour than the prototypical American,” Abbas told me. “The Muslim community has been saying since September the 11th that the policies that disproportionately affect the Muslim community here in the United States will eventually affect the broader community. That historical truism is clear in this case.”
Abbas acknowledges that the aims of the lawsuit’s various plaintiffs “collide at times”.
“But we all value the importance of preserving the idea that government is not privy to all our communications,” he says. “That’s not because CAIR is hiding something. Some things are just not any of the government’s business.”
Dinah Pokempner, legal counsel for Human Rights Watch.
Dinah Pokempner, who's the legal counsel for Human Rights Watch, says the surveillance makes it more difficult for victims of human rights abuse to openly discuss their experiences with her group – particularly illegal immigrants, LGBT youth and prisoners.
“Typically victims of human rights abuse don’t want their government to know that they’re complaining to human rights monitors,” she told me, before conceding that there is only one common denominator among the plaintiffs: “The only thing we have in common is that pervasive government surveillance will harm our ability to do our work to pursue our causes. That’s the only thing.”
Count Shahid Buttar the executive director of another plaintiff – the Bill of Rights Defence Committee – is among those who think the NSA has transcended the traditional American political dichotomy.
“The fact that liberals and conservatives agree that dragnet domestic spying violates our constitution indicates that the only people who support the programme are the ones who haven’t thought about it very carefully,” says Buttar. “I dare say that this is an issue that pits America versus authoritarianism, not the left versus the right. What you see in the diverse voices supporting the lawsuit are movements of Americans writ large.”
Buttar says he’s not worried about the litigation team being outgunned by the federal government and its deep pool of resources. What does trouble him, he says, is a complicit and compliant judiciary.
“Whether it’s torture, profiling, surveillance – maybe the one exception is detention policy – the judiciary has really become complicit in the constitutional violations of the executive branch, both under the Bush administration and the Obama administration,” he says. “My concern is whether our judges are still independent enough to see a reasoned argument and cast an impartial vote when they have the opportunity.”
Allen St Pierre with medical marijuana patient Vincent Lopez.
Allen St Pierre, the executive director of another plaintiff – the National Organisation for the Reform of Marijuana Laws (NORML) – says his group have been dissidents of the federal government since the early 1970s. The government, he says, has been spying on the marijuana reform lobby for decades.
St Pierre says that the US Drug Enforcement Administration was privy to the NSA’s programme. He worries that the Office of Drug Control Policy may also have been privy to his group’s communications. He says all of that is troubling for a group that is trying to change the drug laws of the land and fears that his organisation’s cause may be undermined by the alleged illicit surveillance.
“We joined to make the point that we don’t appreciate being spied on,” says St Pierre. “The lawsuit does seem to include a wide array of folks. It doesn’t seem to necessarily be very left of centre or very right of centre.”
Mark Rumold is the staff attorney for EFF, the group that organised the plaintiffs. In organising a disparate group of organisations to sue the federal government, EFF – according to Rumold – wanted to demonstrate that “the NSA’s programme – and the constitutional violations from that programme – cuts across the political, social and religious spectrum”.
Explaining, he told me, “It affects everyone, whatever their particular cause happens to be.”
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