It’s hard for me to believe this is going on in America. When I first came to the United States, I discovered how much Americans cherish their privacy, their “personal space.” Growing up in a heavily populated country, I had no sense of privacy or personal space. I remember once in high school leaning against someone’s car and the guy came up to me and said, “Get off my car.” I was puzzled; I didn’t know what he was talking about. I soon learned that a man’s car is a part of him, and keeping a certain distance from the car is a way of respecting a man’s personal space. In America, we learn not to stand too close to another person, or else they say, “Get out of my face.” Americans recognize that our privacy is part of our individuality and attempts to invade our privacy are experienced as an insult and a violation. Yet now our government has invaded our personal space. The most private precincts of our lives—our conversations—and of our minds—the things we watch and hear—are subject to covert government scrutiny. If you read this book electronically some government analyst at the NSA might be watching you do it. It’s creepy.
Such comprehensive spying on American citizens would seem to flagrantly violate the constitutional prohibition of “unreasonable search and seizure.” After all, the government is spying on law-abiding citizens who are not suspected of any crime. That would seem to make any searches prima facie “unreasonable.” Admittedly in a 1979 case, Smith v. Maryland, the Supreme Court ruled that people who sign up with the phone company and receive a telephone number thereby relinquish their privacy right over the phone activity associated with that number. Still, it’s one thing to give up necessary information to Verizon, or to share a credit card number with a company you are making a purchase from, and entirely another to expect your phone and credit card activity to be routinely monitored and stored by the U.S. government.
With privacy concerns in mind, Congress in 1976 set up a Senate Committee on Intelligence to review America’s spy agencies. Yet, until Snowden’s revelations, the Obama administration had not fully informed Congress about its spying practices. When Democratic Senator Ron Wyden asked Obama’s intelligence director James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper answered, “No, sir.” It was, as Clapper later conceded, a brazen lie. Even now, Wyden says, he does not know the full extent of the Obama administration’s spying on American citizens. Asked about specific actions—is the government downloading my Facebook photos?—Wyden typically replies, “What do I know? I’m only on the Intelligence Committee.”5
Congress also set up special courts to review the government’s espionage against American citizens. In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) which forbade intelligence agencies from spying on Americans unless they were agents of a foreign power. FISA courts were set up to oversee government actions. Yet the government typically does not provide to these courts the information necessary to make an independent judgment on the need for domestic espionage. The government makes its case, and there is no one to represent those who are the targets of the surveillance. So, in effect, the government pleads “national security” and the courts rubber-stamp its programs. All these proceedings are conducted in secret so there is no opportunity for the American people to know what is happening to them.
It took an independent judge, Richard Leon of the District of Columbia, to find the Obama administration’s domestic spying “almost Orwellian” and to say that it flagrantly violates the protections the Founders built into the Constitution. Judge Leon wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen.” Judge Leon considered the Obama administration’s claim that warrantless phone tapping was necessary to thwart imminent terrorist plots. He found that there was not “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack or otherwise aided the government in achieving any objective that was time-sensitive.”6
All of this, I regret to say, started under the Bush administration. Understandably the Bush people were in a panic over 9/11, and they demanded that Congress give the executive branch expanded powers to track terrorists. Bush officials were worried about the time delay in seeking warrants for spying. While the warrant was being pursued, there might be a terrorist attack. Congress, however, had no idea that this tracking apparatus would become a Leviathan of domestic surveillance, and that the government intended to spy on Americans who were not even suspected of any crime.
The Obama administration has not only continued the Bush administration’s surveillance policies, it has also expanded them. Earlier in his career Obama was considered to be a defender of privacy and civil liberty. In his 2004 Democratic Convention speech, Obama spoke movingly about the danger of the government snooping in a library to find out what books Americans were reading. As a senator, Obama criticized what he then saw as excesses in the Bush administration’s surveillance programs.7 Now, however, Obama seems willing to adopt techniques far more sinister than library surveillance, and more expansive than the Bush programs he once objected to. Is it because Obama has come to a new realization of how sneaky and dangerous the terrorists are? I doubt it. Terrorism has never been his main concern. More likely he has come to see the benefits of government “having the goods” on the entire body of American citizens. I also believe he recognizes the value of Americans knowing what their government is doing; he wants them to know. People can only experience a “chilling effect” on their actions when they understand they are under scrutiny.
Obviously there is a national security rationale for tracking terrorists, and equally obviously, the state does not have to violate the privacy of 300 million Americans to do it. As Senator Rand Paul puts it, the big story here is not that the U.S. government is spying on terrorists—we expect that and want the government to do that—but that the U.S. government is spying on its own people. Now we know that Americans will endure reasonable invasions of privacy when there is a compelling rationale for it. When the Boston Marathon bomber was hiding somewhere in the area, many New Englanders willingly submitted to having their homes and yards searched to find the culprit. But imagine if the state, in order to catch a particular burglar—or even burglars in general—began a regular practice of entering and searching the homes of Americans. Imagine if the military or the police regularly showed up at your house for this purpose. There would most likely be a public revolt, because there is no clear connection between a program so widespread and extravagant, and the narrowly focused task of catching burglars. Similarly the government has not shown—has not even attempted to show—why it needs a nearly Soviet style of surveillance in order to keep tabs on the bad guys.
In the seventy years of the Bolsheviks, the Soviet Union attempted a comprehensive surveillance of the Russian people. The Soviets knew that to build a collective society and enforce the collectivist ideology, you must first collect information on the citizens. This practice reached its terrifying zenith under Stalin. Stalin used the information gathered through surveillance to murder political opponents, harass religious believers, relocate whole populations, and dispatch unwanted people to the labor camps in Siberia. Yet although Stalin’s crimes were later exposed by his successor, Khrushchev, nevertheless the KGB continued to monitor the activities of the Soviet people. Dissenters, whether political or religious, continued to face harassment and prosecution. The Soviet methods were crude. Bugs were installed in homes and hotel rooms, “persons of interest” were followed, neighbors and children were encouraged to report on suspicious activities.
The writer George Orwell took the process to its grim logical conclusion in his dystopian novel 1984. Orwell was prescient: he envisioned omnipresent telescreens with hidden microphones and cameras (“Big Brother is watching you”), he anticipated a Thought Police, he portrayed the state feeding apathetic citizens a barrage o
f non-stop propaganda, he foresaw how the state might justify its regime of repression by contending that this was in the name of the people and for the people’s own good. Orwell wrote, “There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and except in darkness, every movement scrutinized.” Orwell concluded that “the possibility of enforcing not only complete obedience to the will of the state, but complete uniformity of opinion on all subjects, now existed for the first time.”8
Notwithstanding his prescience, Orwell never imagined that technology would, just a quarter century after the year 1984, reach such a level of sophistication that citizens could be spied on and monitored without little bugs and treacherous neighbors and children. Orwell believed it would take massive torture and violence to sustain a Big Brother state. He symbolized such tyranny with the image of “a boot stamping on a face—forever.”9 In the case of American citizens, you don’t have to worry about a boot stamping on your face, just an unwelcome knock on your door. There you will encounter not Big Brother but a couple of FBI agents there to ask a few questions. They will be responding to inquiries generated by analysts sitting in unmarked offices. America’s spying strategy is different from Big Brother, yet no less effective in achieving its purpose. That purpose is obviously not the maintenance of an official Marxist ideology. Nor is it for the public adulation of the president. (Obama gets that from the media anyway.) Rather, the surveillance is to keep the entire citizenry in check, so that citizens who revolt against the progressive agenda can be identified and punished.
Sometimes this punishment can take the form of an IRS selective audit. We’ll just add your name to the list. We know that this has happened to numerous Tea Party groups; their crime is not tax evasion, but organizing people to resist Obamacare and progressive policies. The IRS also came down on the producer of my film 2016, Gerald Molen. Molen is the Academy Award winning producer of films such as Jurassic Park and Schindler’s List. He also happens to be the producer of my new film America. Throughout his long career, Molen was unmolested by the IRS. Suddenly, around the time of the 2012 election, he came under IRS scrutiny. More recently the IRS has been harassing the Hollywood conservative group Friends of Abe. These are conservatives who seek anonymity in order to protect their careers. By forcing the group to release its donor and membership lists, the IRS is making it virtually impossible for the group to function effectively. These IRS shenanigans do not merely illustrate how government power can and does get abused. They also illustrate how progressives do not hesitate to use the government as their weapon of retaliation against their political enemies.
This kind of bullying is common in Third World countries, where the government uses tax audits and selective prosecution to intimidate its political foes. Americans, however, have never tolerated such behavior. The last time power was abused in this way—though not nearly to this extent—it was by Richard Nixon, and he was forced to resign because of it. Recently I was amazed to read that the Obama administration is going after Standard & Poor’s in retaliation for the credit agency downgrading the credit of the U.S. government. At the time, Treasury Secretary Tim Geithner warned the head of the S&P that he was going to pay for embarrassing the Obama administration. Evidently the government is now making good on that threat.10 And I myself have been charged with violating the campaign finance laws by reimbursing two friends who contributed $20,000 to the Senate campaign of one of my longtime friends from Dartmouth. There’s a $10,000 limit in campaign contributions to a candidate. There is no allegation that I sought to benefit myself in any way. At worst, this was a misguided effort to help a friend in an uphill—and, as it turned out, unsuccessful—campaign against a well-heeled opponent. Even so, I am facing two felony counts that carry a maximum prison sentence of seven years.
There are hundreds—perhaps thousands—of federal laws, and the government has the ability to prosecute just about every citizen for doing something wrong. More precisely, the government has the power and discretion to decide whom it wants to prosecute. There is an obvious “danger posed to civil liberties when our normal daily activities expose us to potential prosecution at the whim of a government official.” Those are the words of civil liberties attorney Harvey Silverglate, from his recent book Three Felonies a Day. Silverglate argues that the ordinary citizen goes about his life, from surfing the web to making investments to getting prescription drugs to buying stuff to donating money to charities, having no idea that these normal activities can be construed to be in violation of federal laws: drug laws, laws regulating financial transactions, laws regulating sales and purchases, “duty to disclose” laws, laws outlawing “leaks” and obstruction of justice, racketeering statutes, and anti-terrorism laws.
The government has used these laws to prosecute doctors who prescribe pain medication as being “drug dealers.” Lawyers who protect the confidentiality of their clients have been hit up with “obstruction of justice.” Journalists are prosecuted for failing to disclose their sources. Corporate officials carrying out their normal business functions, or peacefully demonstrating political activists, can be nailed on racketeering charges. Charitable donations by well-meaning donors can be linked to terrorist suspects or groups. Far from protecting law-abiding citizens, Silverglate writes that it is now routine for the government to target and prosecute them.
Quite often, you have no idea what you have done. Many of these laws are so vague that it’s impossible to know in advance whether you are in compliance or not. I can testify to this. This vagueness benefits the government, because it gives government officials discretion to decide who they want to go after. In his introduction to Silverglate’s book, civil liberties champion and Harvard Law professor Alan Dershowitz writes of “accordion-like criminal statutes” which can be expanded or contracted to suit political expediency. Silverglate notes that “the pliability of federal law makes it all too easy for a self-serving U.S. attorney to take down his or her political adversaries.”
Federal prosecutors are not politically neutral. They are likely to serve the interests of the executive branch of government, since that’s who appointed them. And getting charged is only the starting point. Even if you’re innocent, Dershowitz writes, the government has ways to force you to plead guilty. Dershowitz points out that “federal criminal law carries outrageously high sentences, often with mandatory minimums… . The threat of high sentences makes it too costly for even innocent people to resist the prosecutorial pressure. That’s why nearly all criminal defendants today plead guilty to ‘reduced’ charges rather than risk a trial with draconian sentences in the event of a conviction.”
Silverglate writes,
Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career. Whole families have been devastated, as have myriad relationships and entire companies. Indeed one of the most pernicious effects of the Justice Department’s techniques … is that they wreck important and socially beneficial relationships within civil society. Family members have been pitted against one another. Friends have been coerced into testifying against friends even when the testimony has been less than honest. Corporations have turned against employees and former partners to save the companies from obliteration, following scripts entirely at odds with the truth… . Newspaper reporters have been pitted against confidential sources. Artists, including those critical of the government, have been subjected to Kafkaesque harassment. Lawyers and clients have found themselves adversaries, as have physicians and patients, where enormous pressure has been placed on the ill to turn against those in whose capable professional hands they placed themselves in search of tre
atment. No society can possibly benefit from having its government so recklessly attack and render asunder such vital social and professional relationships.
Silverglate writes, “Astute observers of the federal criminal justice system have long since given up believing that the guilty plea reveals true culpability: It’s all too common for such pleas to be the product of risk avoidance at the expense of truth.” No wonder Silverglate’s book is subtitled, “How the Feds Target the Innocent.” If you don’t think these things happen in America, read Silverglate’s book and wake up. You’ll certainly become a believer when they happen to you. There is no disputing Silverglate’s bottom line: “no field of work nor social class is safe,” and the government now has the power to get you—if it wants to.11 Surveillance is simply the means to ensure that no one is safe.
The screen of secrecy against government spying has been broken, yet the Obama administration is fighting hard to convince Congress and the Courts to let it keep its surveillance system, the American Panopticon. We need to curtail the system now, because in time it will expand so that even elected officials and judges will be too terrified to oppose it. After all, the government will have extensive files on them too. At this point America’s checks and balances will have collapsed, and we will be living in a totalitarian society. If progressives enforce their agenda through total control and compliance, America will truly be an evil empire, and it will be the right and duty of American citizens to organize once again, as in 1776, to overthrow it.
CHAPTER 16
DECLINE IS A CHOICE
Dinesh D'Souza - America: Imagine a World without Her Page 23
