What happens when the Senate passes a law that a federal court has already ruled is illegal? That's what is now in motion due to the Senate vote this past Sunday night to move forward with the process of renewing mass surveillance. The proposed legislation – the ill-named USA Freedom Act – is diametrically opposed to the Bill of Rights and the Constitution. It is a law that legalizes mass surveillance targeting tens of millions of US citizens, whether or not they're guilty of any wrongdoing.
Amazingly, due to the incredible work of a massive left-right coalition of civil liberties organizations, we've managed to garner a momentary sunsetting of several provisions of the Patriot Act that have been used to legally justify mass surveillance. But the sad reality is that the USA Freedom, which reauthorizes these provisions, has been pushed forward by the Senate and may very well pass later this week. If so, the mass surveillance programs that the National Security Agency has just shut down on Monday will be immediately ramped back up – once again collecting billions and billions of records about our everyday actions (including who we talk with and when those conversations are taking place).
While supporters of mass surveillance continue their fear-mongering – declaring that the government needs this mass surveillance program to fight terrorists – the overwhelming preponderance of evidence is that these programs have been both wildly expensive and ineffective.
The White House's NSA review group concluded that the program “was not essential to preventing attacks” – an analysis backed up by a thorough analysis by my old colleagues at the New America Foundation's International Security Program, which found that the program “has had no discernible impact on preventing acts of terrorism.”
Meanwhile, President Obama's independent advisory, the Privacy and Civil Liberties Oversight Board, concluded earlier this year, “The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.”
Given the illegality of this mass surveillance program, given its expense, given that it doesn't work, and given that the reviews of the program, both by national security experts as well as by the US government itself, have concluded that it's a boondoggle that infringes upon the Constitution and the Bill of Rights, why is Congress going to such extremes to maintain mass surveillance?
It's mainly because members of Congress do not face meaningful repercussions when they break their oaths of office to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Thus, it becomes incumbent upon us, they myriad voters who are against mass surveillance of innocent Americans, those of us who believe people are innocent until proven guilty, those of us who believe that the checks and balances of rule of law and judicial review are the cornerstones of a vibrant Democracy, to hold individual Congress members who vote for continuing mass surveillance to account.
This isn't a “left” or a “right” issue – this is a shared value, this is about people who believe in the fundamental civil rights enshrined in the Constitution banding together to kick out those who are undermining the underpinnings of American democracy.
It's time for our key decision makers to be held accountable for their actions, and with the upcoming elections of 2016, we have the opportunity to make our dissatisfaction heard. In the meantime, the member organizations of the Civil Liberties Coalition will continue our battle to end mass surveillance of innocent Americans.
Sascha Meinrath is the director of X-Lab, a tech policy think tank, and a cofounder of the Civil Liberties Coalition, a pan-partisan coalition that fights to ensure that surveillance does not infringe upon our fundamental constitutional rights.