As scary as terrorism is, a war on civil liberties in the name of catching terrorists is not the answer.
The terror attack in Manchester on May 22nd showed just how barbaric Islamist terrorists can be. A 22-year old man strapped a shrapnel-filled bomb to his body and detonated it in the lobby Manchester Arena after an Ariana Grande concert—for which the audience was largely children—as the crowd was leaving. Over 20 people died and about 60 were injured.
That terrorists would target innocent kids attending what was supposed to be a joyful event with such cruel tactics is, well, terrifying. This was followed by another set of attacks on June 3rd also in London, which left seven innocent people dead and nearly 50 injured.
We all want to be safe and live in a world where we don’t have to worry about attacks like this one, and our governments are working to protect us from these unique threats.
However, catching terrorists is still not, and will never be, a good excuse for violating the privacy rights of innocent people.
The Trump administration’s love of digital surveillance
Donald Trump frames himself as a “law and order” President and has always taken a tough stance on terror. With a history of backing pro-surveillance policies and a scared worldwide populace, conditions might be right for him to, in the name of security, grab more power than the Constitution allows.
During the 2016 republican primary discussions on new restrictions to the NSA’s domestic spying abilities, Trump made clear that he would prefer to restore the NSA’s bulk metadata collection program, which ended in 2015 thanks to the USA Freedom Act.
“When you have the world looking at us and would like to destroy us as quickly as possible,” Trump told conservative radio host Hugh Hewitt on Dec. 2015. “I err on the side of security.”
He’s also favored other forms of government snooping capabilities.
Trump called for consumers to boycott Apple after the company refused to help the FBI get past the encryption on an iPhone that belonged to one of the San Bernardino terrorists. Doing so would have created a “backdoor” to the iPhone that would, in the words of Apple CEO Tim Cook in an open letter about the case, “hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals.”
Others in Trump’s administration have a history of sponsoring government violation of citizens’ privacy.
Attorney General Jeff Sessions worked against the USA Freedom Act while he was in the senate and is a known fan of the government’s warrantless surveillance capabilities. He regularly voted in favor of reauthorizing and bolstering the Patriot Act.
The new CIA Director, Mike Pompeo, is even worse than Sessions on this issue.
In a Wall Street Journal commentary in Jan. 2016, Pompeo said, “Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database.”
Essentially, he wants the government to be able to know whatever it wants about you, whenever it wants, without a warrant.
After any devastating loss of life, it seems to be government types’ knee-jerk reaction to call for the curtailing of liberties in the name of safety.
The left, for example, tends to go after second amendment rights following gun-related tragedies like San Bernardino and Sandy Hook.
Similarly, after terrorist attacks like Manchester or 9/11, bipartisan coalitions often attack privacy under the Fourth Amendment for the purpose of collecting information that may help thwart terrorist plots.
Accordingly, after Manchester, the calls to ramp up the government’s snooping abilities came quickly.
May 23 on Fox and Friends, the morning after the attack, James Mitchell, a leader of the “enhanced interrogations” under the Bush administration, explicitly blamed civil rights for attacks like the one in Manchester.
“The problem is,” he said, “we have civil rights that allow [terrorists] to operate in the open for the most part until they commit a crime…. With that kind of approach to this, it’s very difficult to get into preemptively stopping these kinds of attacks because they have people who protect them under the guise of protecting the civil rights.”
With Mitchell, among others, lamenting civil rights and privacy in the wake of the tragedy in Manchester, and a group surrounding the President that isn’t exactly favorable towards Fourth Amendment protections, it’s plausible we could see action from the executive branch to the effect of bringing back the kind of metadata collection we saw before the USA Freedom Act.
Why should you care?
“So what,” many say, “if the government is collecting my phone records? It’s not like they’ll ever look at it or use it against me.”
To start, such surveillance is unconstitutional.
The Fourth Amendment makes clear searches must have probable cause (with or without a warrant) and be specific as to what people and things are to be searched or collected. Bulk hoarding of phone records and the like flies in the face of this part of our Constitution. It is unreasonable, without any cause, and reeks of the general warrants and writs of assistance used by the British that our Founders decried.
The ACLU blasted bulk collection under the Patriot Act in its analysis of President Trump’s surveillance policy.
“The NSA’s bulk collection program,” the paper states, “lacked all of the indications of reasonableness required by courts: It infringed on Americans’ privacy without probable cause or individualized suspicion of any kind; it was effectively indefinite, vacuuming up call records for more than 10 years; and it lacked any measure of particularity, instead logging information about every single phone call.”
Pompeo attempted to defend the constitutionality of bulk metadata collection in the same Wall Street Journal post referenced above, saying, “reasonable warrantless searches are compatible with the Fourth Amendment.”
That’s true. The key word, however, is “reasonable.” Reading the Fourth Amendment to permit collecting information on private citizens, who are guilty of nothing, for no reason whatsoever, is absurd.
If the supreme law of the land isn’t enough, it’s also clear that warrantless data collection isn’t even effective in preventing terrorist attacks.
Britain passed the Investigative Powers Bill in Nov. of last year, making it the world’s foremost surveillance state. This legislation essentially gave the British government the power to hack anything or anyone, record every citizen’s browser history, collect metadata on phone records, and more.
But it didn’t stop Manchester.
Similarly, bulk collection of telephone calls in the U.S. has stopped exactly zero terror plots.
In a 1798 letter to Thomas Jefferson, James Madison said, “Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions [against] danger real or pretended from abroad.”
The debate between liberty and security has spanned through all American history. A part of what makes our country great is that our Constitution protects the liberty of our citizens from government encroachment, even when that encroachment may be a convenient means to a desirable end. No matter what terror threat we face, we can’t let our fear take away this part of what makes us who we are.
If we do, to use a fitting cliché, we’re letting the terrorists win.
Tyler Olson is a student at the Pennsylvania State University.