2015: The Civil Liberties Disaster With Legs

Almost exactly two-and-a-half years after Edward Snowden revealed to the world the breadth and depth of U.S. government surveillance against just about anybody with a phone or an internet connection, the United State Congress demonstrated convincingly how little it cared about the constitutional rights imperiled by those surveillance programs.

A week before Christmas, the Congress passed the FY16 omnibus spending bill, which included a new de facto surveillance bill — the Cybersecurity Information Sharing Act. My friend Norm Singleton at Campaign For Liberty, with some help from folks at the Open Technology Institute, has a good rundown on what the new version of CISA will mean for all of us. Bottom line: the National Security Agency, the Department of Homeland Security, and other federal agencies are going to have a field day sucking up still more of our personal data even as they fail to address the real causes of the Office of Personnel Management breach and related compromises of federal agency databases.

Including an even worse version of CISA in a must-pass spending bill was bad enough, but the Congressional leadership didn’t stop there.

Defying the will of a clear majority of House members, the omnibus conferees stripped out two Defense Department appropriations riders that were designed to halt the warrantless searching of American’s communications data under the FISA Amendments Act and prevent the undermining of public key encryption standards. Those two reforms, which only would have been good for a year unless made permanent through the authorization process, were among the most important and meaningful attempts to address some of Snowden’s most important revelations.

Not satisfied with making the surveillance of millions of innocent Americans even easier for Uncle Sam, the House and Senate conferees also elected to spend millions of taxpayer dollars on the government’s anti-Muslim/anti-Arab-American “countering violent extremism” (CVE) boondoggle — despite the fact such programs have been repeatedly discredited.

These defeats for the basic constitutional rights of Americans have happened in spite of the defenders of the Bill of Rights being correct on the merits in each case. The facts have simply not mattered.

And there is another reason why these defeats have happened: the fundamental lack of political power of those making the case for preserving the Bill of Rights.

Simply stated, members of the House and Senate fear the political consequences of “not doing more” to combat ISIS at home far more than they fear angering those who believe the Bill of Rights is the very foundation of our democracy. The tragedy in San Bernardino was all the political cover Congress needed to expand the government’s dragnet via CISA and to jump onboard Donald Trump’s anti-Muslim/anti-Arab-American campaign bandwagon.

These dark political trends will not change unless the composition of the Congress is changed — from one controlled by authoritarian, anything goes National Security State boosters to one populated by members who are willing to heed Madison’s great admonition:

Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. On a candid examination of history we shall find that turbulence, violence, and abuse of power by the majority trampling on the rights of the minority, have produced factions and commotions, which in republics, have more frequently than any other cause produced despotism. If we go over the whole history of the ancient and modern republics, we shall find their destruction to have generally resulted from those causes.

Traditional forms of non-profit legislative advocacy have done a masterful job of highlighting the dangers of and damage caused by the PATRIOT Act, the FISA Amendments Act, and other laws that have failed to make us safer while robbing us of the very freedoms that Madison, Jefferson, Washington, Henry and the other Founders risked their lives to bequeath to us. Unfortunately, if 2015 demonstrated anything, that same non-profit legislative advocacy model cannot accomplish the rollback of these very public encroachments and usurpations of our liberties. Only an electorally-based strategy — one that makes political candidates genuinely fear the electoral consequences of trying to eviscerate the Bill of Rights — can change the current political paradigm. Whether 2016 will witness the birth of such a liberty-focused political movement is something only time will tell.