Worse Than Orwell

President Obama has promised reform of the NSA’s mass collection of data on virtually all Americans and much of the world. But his proposals are limited and his speech failed to offer clemency to Edward Snowden who made the public debate possible, writes Marjorie Cohn.

By Marjorie Cohn

‘“Big Brother is Watching You,” George Orwell wrote in his disturbing book 1984. But, as Mikko Hypponen points out, Orwell “was an optimist.”

Orwell never could have imagined that the National Security Agency (NSA) would amass metadata on billions of our phone calls and 200 million of our text messages every day. Orwell could not have foreseen that our government would read the content of our emails, file transfers, and live chats from the social media we use.

Author George Orwell.

Author George Orwell.

In his recent speech on NSA reforms, President Obama cited as precedent Paul Revere and the Sons of Liberty, who patrolled the streets at night, “reporting back any signs that the British were preparing raids against America’s early Patriots.” This was a weak effort to find historical support for the NSA spying program.  After all, Paul Revere and his associates were patrolling the streets, not sorting through people’s private communications.

To get a more accurate historical perspective, Obama should have considered how our Founding Fathers reacted to searches conducted by the British before the Revolution.  The British used “general warrants,” which authorized blanket searches without any individualized suspicion or specificity of what the colonial authorities were seeking.

At the American Continental Congress in 1774, in a petition to King George III, Congress protested against the colonial officers’ unlimited power of search and seizure. The petition charged that power had been used “to break open and enter houses, without the authority of any civil magistrate founded on legal information.”

When the Founders later put the Fourth Amendment’s prohibition on unreasonable searches and seizures into the Bill of Rights, they were attempting to ensure that our country would not become a police state.

Those who maintain that government surveillance is no threat to our liberty should consider the abuse that occurred nearly 200 years later, when FBI Director J. Edgar Hoover conducted the dreaded COINTELPRO (counter-intelligence program).  It was designed to “disrupt, misdirect, discredit and otherwise neutralize” political and activist groups.

During the McCarthy witch hunts of the 1950s, in an effort to eradicate the perceived threat of communism, our government engaged in widespread illegal surveillance to threaten and silence anyone with unorthodox political views. Thousands of people were jailed, blacklisted, and fired as the FBI engaged in “red-baiting.”

In the 1960s, the FBI targeted Dr. Martin Luther King, Jr. in a program called “Racial Matters.” King’s campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed that King’s organization was being infiltrated by communists.

But the FBI was really worried that King’s civil rights campaign “represented a clear threat to the established order of the U.S.” The FBI went after King with a vengeance, wiretapping his phones, and securing personal information which it used to try to discredit him, hoping to drive him to divorce and suicide.

Obama would likely argue that our modern day “war on terror” is unlike COINTELPRO because it targets real, rather than imagined, threats. But, as Hypponen says, “It’s not the war on terror.” Indeed, the Privacy and Civil Liberties Oversight Board, an independent federal privacy watchdog, found “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

The NSA spying program captures all of us, including European leaders, people in Mexico, Brazil, the United Nations, and the European Union Parliament, not just the terrorists. Although Obama assured us that the government “does not collect intelligence to suppress criticism or dissent,” our history, particularly during COINTELPRO, tells us otherwise.

Obama proposed some reforms to the NSA program, but left in place the most egregious aspects. He said that the NSA must secure approval of a judge on the Foreign Intelligence Surveillance Court before it gets access to the phone records of an individual. But that is a secret court, whose judges are appointed by the conservative Chief Justice John Roberts, and it has almost never turned down an Executive Branch wiretapping request since it was created in 1978. Most significantly, Obama did not say that surveillance without judicial warrants or individual suspicion should be halted.

“One of [Obama’s] biggest lapses,” a New York Times editorial noted, “was his refusal to acknowledge that his entire speech, and all of the important changes he now advocates, would never have happened without the disclosures by [Edward] Snowden, who continues to live in exile and under the threat of decades in prison if he returns to this country.”

Snowden’s revelations will reportedly continue to emerge. And you can bet that Orwell will continue to turn in his grave for a long time to come.

Marjorie Cohn is a professor of law at Thomas Jefferson School of Law, a past president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her next book, Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, will be published this fall by University of California Press. [The article previously appeared at HuffingtonPost.]

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5 comments on “Worse Than Orwell

  1. elmerfudzie on said:

    My thanks to Marjorie Cohn, a good historical perspective that said, the general public has yet to work through the real or imagined legitimacy of whistle blowers like Edward Snowden. His NSA story may in fact be just another “limited hang-out”. The so called turncoats seem to reveal what most of us have come to know and accept at least on the subconscious level that is, a gradual encroachment on daily life. This spying could be stopped by legislative effort however, name the senator or representative who would stake their career or life, for that matter, on promoting such a law only to be compromised with a terrible black flag operation. It doesn’t matter how many Snowdens come forward, or whether the Intel agencies are directing their nose inward towards domestic activity as opposed to foreign, what matters is the following question; What do we do with technological devises and secret policing policies that create irreparable rifts and tensions between governments, people and even, neighbor against neighbor? This is a desperate situation, suitable with an old tale about the scorpion and the frog. The scorpion begs the frog to take him across a river, the frog refuses at first, but the scorpion assures him that he won’t sting because they’ll both drown if he does. In midstream, the worst happens and the dieing frog asks the drowning scorpion, why did you do it? he replies, it’s in my nature I guess…We can now better visualize and sort the issues here. The river is the difficult obstacle (for any number of, forgive the pun, current issues) we the proles are represented by the frog and I’ll let you pick who the scorpion is. I warn the reader that the scorpion might indeed be a living thing but is hopelessly programmed to do the worst regardless of the extenuating circumstances. And now, an apropos passage from the bible suddenly comes to mind. Perhaps the Lord is descending down to earth; Quote from Corinthians 4:5 …he will bring to light everything that is hidden in darkness and reveal the designs of all hearts. There’s nothing in this passage that imply s just how God will choose to accomplish it. Lastly, will all this meta data mining really reveal what motivates people at a particular moment or further, what really lies hidden in their thoughts? or is that sort of secret opened only on judgement day?

  2. It seems not many of us care if we spy on Americans, as long as it’s done to people we don’t like. Many probably didn’t care we spied on “communist sympathizers” or “anti-war activists” back then. And the authoritarian followers, also know as sheep, don’t care today.

  3. Bob Gort on said:

    I’d like to see the NSA provide us with an address where we can voluntarily send in material, in case we have a thought that they otherwise might miss!

  4. The fbi/cia/nsa are in fear of losing their stranglehold on the people; so the corrupt fools of usa intel community invent new ‘threats’ everyday for publicity purposes and to instill fear in the public which (in their twisted, homicidal minds) may justify continuing atrocities. fbi/cia/nsa=unnecessary evil.

    The real mafia:
    http://api.ning.com/files/vLjBZXSiTsqBeVnMWKRxiUFbs3AU5UYThTke6sNwClmHjgP0cLzJfQpxwoCU485Ud2W9NtefSOd4ybsm6uNcNH3Xl4rkomOs/20120509mafia.jpg

    The fbi miscreants train police leaders from around the world at fbi National Academy!

    Most crimes by police thugs go undetected and not reported.

    Fight police brutality by understanding the mental illness that controls all police; then, disarm the thugs in blue and find a civil way to handle complex cultural issues.

    Global Police State Forming, Few Object

    See my recent report on evidence that the USA uses federal state and local police (and operatives) to try to provoke an unacceptable response in their efforts to find a way to silence or kill me.

    http://neworleans.indymedia.org/news/2014/02/18992.php

    Spanish:

    http://barcelona.indymedia.org/newswire/display/479388/index.php

    German:

    http://www.dewereldmorgen.be/blogs/gsosbee/2014/02/09/globale-polizeistaat-formen-wenige-objekt

    UT Police Crimes Against me:

    http://sosbeevpolice.blogspot.com/

    http://www.indymedia.org.nz/articles/2032

    http://boston.indymedia.org/newswire/display/219578/index.php