Editors’ note: When “In Defense of PRISM,” an opinion piece published on InTheseTimes.com on July 3, 2013, received heavy criticism, we invited journalist and privacy advocate Zaid Jilani to write a rebuttal.
Some of the most prominent defenders of the National Security Agency’s spy programs are the people you might expect: right-wing authoritarians. There was Senate Minority Leader Mitch McConnell, who praised the agency’s “lawful program to protect Americans” and demanded the prosecution of whistleblower Edward Snowden. There was former Bush press secretary Ari Fleischer, who said “the program is a good one” and that it has “kept us safe.” And the list wouldn’t be complete with former Vice President Dick Cheney, who praised the spying program and even brought forth the spectre of terrorists smuggling in a nuclear device to rebut critics.
None of this reaction is particularly surprising from those like Cheney who have been at the forefront of advancing the brutish, violent side of government for years. What is more disconcerting is that fact that self-avowed progressives have risen to the defense of the NSA’s violations of American freedom.
Louis Nayman — a longtime union organizer who I’m sure has been involved in difficult and important struggles as a progressive activist — makes a major misstep by suggesting that progressives should be defending the NSA’s conduct.
His article for In These Times, “In Defense of PRISM,” begins with a long series of unsubstantiated claims meant to defend the NSA recently disclosed domestic spy programs. For example, Nayman repeatedly asserts that the NSA’s phone and Internet surveillance programs are beyond any doubt legal. But numerous legal scholars have pointed out that the powers the government is claiming to have are incredibly broad, and quite likely beyond the scope of powers authorized under the Patriot Act. This is also the view of Rep. Jim Sensebrenner (R‑Wis.)—and he should know, he wrote it. Section 215 of the Patriot Act allows the government to seek “tangible things” after proving relevance to a foreign intelligrnce investigation. Seizing the millions of phone records under the logic that a handful may have relevance is stretching the law.
Additionally, the constitutionality of mass surveillance itself has yet to be tested, although the American Civil Liberties Union is sponsoring a constitutional challenge through the courts. Former Vice President Al Gore has said that he believes the NSA surveillance programs are unconstitutional.
Nayman also writes, “According to NSA officials, the surveillance in question has prevented at least 50 planned terror attacks against Americans, including bombings of the New York City subway system and the New York Stock Exchange.”
The important phrase here is “according to NSA officials.” It is entirely possible that PRISM and the NSA’s other surveillance programs have stopped terrorist attacks aimed at Americans. But it’s also entirely possible that they haven’t — we have no idea, and uncritically taking the word of government officials would be a foolish choice.
Take, for example, the case of Najibullah Zazi, a man who allegedly plotted to bomb New York City subways, whom NSA head General Keith Alexander, Sen. Diane Feinstein (D‑Calif.) and others claimed was NSA mass surveillance programs. As the Associated Press pointed out, investigators looking into Zazi’s case already had probable cause to suspect that he was involved in plotting terrorism, meaning that obtaining a warrant to surveil him would’ve been easy. In fact, British authorities first learned of Zazi by seizing the physical computers of another terrorist suspect — meaning that they got wind of him through good old-fashioned police work, not mass surveillance.
Meanwhile, there’s reason to believe the word of NSA officials may not be good. We can’t forget Director of National Intelligence James Clapper’s infamous testimony before the Senate in March:
WYDEN: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
JAMES CLAPPER: “No sir.”
WYDEN: “It does not?”
CLAPPER: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”
Clapper later told the media that his response that day was the “most truthful, or least untruthful” response he could give.
After this spree of misleading statements from top government officials, it would be folly to simply trust those in power. Recall that most of this mass surveillance stems from the opinions of the Foreign Intelligence Surveillance Court (FISC) — a court whose rulings are secret, denying us the ability to even debate whether we as Americans are comfortable with mass government surveillance we don’t even know is happening.
Following Nayman’s substantive defense of the NSA — which, while flawed, is something reasonable people can debate — his argument veers into much more pernicious territory. “The more the Left aids and abets the reactionary Right’s cynical critique of government, the more both sides make the case to replace collective mission and accountability with the free hand of the market,” writes Nayman, along with some missives aimed at character assassination of Edward Snowden — he seems not to understand or to willfully ignore the fact that Snowden is fleeing to countries unwilling to be bullied by the government in Washington, not bastions of press freedom that would instantly turn him over to CIA interrogators (see the recent EU capture of Bolivian president Evo Morales, known globally as a friend of labor and the poor, qualities that should insire solidarity from Nayman.
He goes on to condemn progressives who are critical of government spying for “doing the Tea Party’s dirty work,” and concludes that if “progressives believe in a legitimate and necessary role for government in achieving social and economic justice, we ought to think twice before delegitimizing the government’s national security function.”
But he actually gets the logic backwards. Progressives should not aim to validate actions by the government that violate our own progressive principles of human rights, freedom and justice. If that was the case, then progressives would be holding mass rallies praising the War On Drugs, which puts millions of people behind bars for nonviolent drug crimes, two-thirds of them racial minorities. Or we would be demanding more funding for drone strikes in Pakistan.
If progressives really were to accept the principle that we should defend government no matter what it does just so some people in the Tea Party don’t use that same message to attack food stamps or some other program we favor, we’d soon find ourselves with a ridiculous and counter-productive message. We as progressives would not only be defending programs that empower people, like Medicare, but also ones that oppressed people, like the government-imposed Jim Crow laws. We’d have to be in favor of wasting money on the F‑22 if we advocate for a national high-speed rail system.
Reflexively backing government, no matter what it does, is not progressive. Progressivism isn’t just about supporting government — it isn’t now, nor has it ever been. We don’t cheer on massive government subsidies for oil companies, Big Pharma, or for-profit colleges. We don’t support all government spending — like the costly and illegal war in Iraq.
In fact, it’s important that the movement proactively stand against abuses by the government, if for no other reason than political self-preservation. That’s the difference between American progressives — for whom basic freedoms of privacy, speech, and due process have always been an important principle — and the authoritarian Left that ruled countries like the Soviet Union.
If the government continues to abuse people’s rights by invading their privacy with programs of questionable constitutionality and policy merit, Americans will fail to trust it to handle their health insurance, to fund their schools, to clean up the air they breathe.
Government can be an incredibly positive force when it is transparent, accountable and empowering. When it is not those things, not only should we oppose it, but we should be proud that there are people on the Right who are willing to join with us in that cause — they’re helping us actually increase faith in the positive aspects of the public sector by addressing its abuses. Not only can we advocate for rolling back the national security state and implementing positive government programs like Medicare for All and a national living wage, but if we are to win over the American public, it may very well be necessary to do both.
The author works part-time for the advocacy group Progressive Change Campaign Committee, which has raised funds for Snowden’s legal defense.