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Life Arts    H3'ed 12/24/13

Recent NSA Ruling Actually REALLY Bad News?

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Steven Rosenfeld
Steven Rosenfeld
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My guest today is Steven Rosenfeld, Senior Reporter at AlterNet. 

Joan Brunwasser: Welcome back to OpEdNews, Steven.  Reading your piece* about the recent NSA ruling was like being doused by a bucket of cold water. We progressives were feeling a tad optimistic but you obviously do not share that feeling. What do you know that we don't? 

Steven Rosenfeld: Hi. Thanks for having me here. I'm not sure that I know anything exclusive or special. But I have been a reporter covering a range of democracy issues--voting rights, money in politics, corporate constitutional rights--and two things pop up. First, U.S. District Court Judge Richard Leon, who wrote the decision taking the NSA electronic eavesdropping to task, is a hard-core right winger and known loose cannon. He's like a mini-Scalia. He is known for berating people from the bench. He's issued some really bad pro-corporate decisions, such as singlehandedly stopping years of public health efforts to change tobacco warning labels from text to images. He was a Republican House staffer who blocked inquiries in the Iran-Contra affair. He is not exactly a reliable friend of progressives, even if reaches a conclusion on NSA spying that we on the left like.

That said, I think it's naive, a bit dangerous, and certainly uninformed when lots of left-leaning media outlets and even liberal Democratic Senators call Judge Leon a civil liberties hero, or our new best friend, or wave his elbows-out opinion trashing the NSA as proof that we were correct in our criticism all along. We were and are correct, but we don't need a right-winger like Leon to validate that. That seems a bit naive to me. 

And there's one other piece to this. I don't think enough people, including reporters, understand how the federal courts work. Each district court circuit is like a kingdom unto itself. And what often happens is you get opposite decisions on the same issue in different circuits. Those conflicting opinions are what bubbles up to the Supreme Court. Washington has a special place in this process because it's not state; it's a federal jurisdiction. So that makes it a faster track for legal challenges that are aiming for Supreme Court review. 

When a judge like Leon takes a strong position on the NSA and other judges in other circuits take opposite positions--as they have--that puts the whole issue of NSA domestic data mining and spying on a fast track to the Supreme Court. And today's Supreme Court has a majority that has a split personality on individual rights. Its tends to support them in some contexts but not others. In policing and national security issues, it sides with state power. What I'm also saying is that this ruling by Leon that we on the left like may push this whole issue of NSA spying before the Supreme Court where we'd get a ruling that we will not like.   

JB: I haven't read anywhere else anything like what you're writing and saying, Steven. Where's the press on this?      

SR: Where's the press on this? Well, too many people--i.e., including editorial writers who look down at us in the lefty media ghetto, such as the NY Times--too quickly grab onto a news hook or opinion or development that suits their immediate agenda, without thinking about who is the messenger beyond the immediate message or what it may mean down the road. I know there are lots of strange bedfellows in politics, but this is a pattern you see everywhere. 

Leon's decision is a big slap at the NSA and Obama's national security state. But I don't think people see him as a Rand Paul in black judicial robes. Which is not that far off. People see a way to push for more privacy protections, which is a legitimate concern. But they don't realize who this judge is, his record and reputation, and how opinions from the DC court (even if you like them) become a fast track way to push constitutional questions upstairs, to the Supreme Court. I don't know why others don't write about this. But talk to trial lawyer friends. They will tell you. None of this would be news to them. 

JB: Is there anything good that can come out of Judge Leon's ruling or is it unmitigatedly bad news, in the long run?

SR: In the short run, many people and institutions with big podiums--U.S. Senators, the Times editorial page--are citing it and pushing back on Obama and Congress. They are ramping up the pressure to pass new laws to rein in the NSA. That feeds into the general atmosphere of criticism facing Obama, but I really haven't seen anything suggesting that privacy rights are growing in America. Or are poised to be more protected? Or elevated? Have you? 

Look at the White House's response to its own panel that made suggestions on the NSA surveillance. It seems lukewarm at best. And the panel is suggesting that private companies hold onto data about our digital lives until the government comes calling. Well, these firms are holding that data anyway. I suppose it is positive that powerful people can and do speak up, but these days it just seems like even more powerful institutions just wait out the noise and keep on doing what they do. I just don't expect the current Supreme Court majority to put privacy rights ahead of national security. I'm sorry if that sounds discouraging.    

JB: It is discouraging, Steve.   Not what we want in our collective Christmas stocking. Anything to add before we close, Steven? Anything at all we can be doing to fight off these incessant and insidious incursions on our privacy rights? 

SR: I wish I could close with more encouraging words. I just think that we all have to be realistic and still do the best that we can with the tools at our disposal. I know that historically the people who have triumphed against adversity kept fighting for what they believed, didn't surrender, and somehow preserved their integrity despite incredible slights and injuries. 

I have studied the steady loss of civil liberties in Nazi-occupied Europe--and even have a book about events in 1943 Holland that I hope will be published there next year. The details from one era to the next are never the same, but there are similar dynamics. Right now, the growth of the Internet and the state's surveillance powers are at a powerful confluence and there's not much pushback or even attempted legal balancing. That's a bit abstract but it's also scary. We're told all the time now about accepting a tradeoff between privacy and state security. I don't buy it. What can any of us do? We can use the podiums we have and try to speak up. But going back to Judge Leon, we don't need a right winger to validate our view.

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Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of (more...)

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