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Another Milestone on the Road to Serfdom

By Scott Horton

12/17/07 " Harper's" -- - Very rarely, I read a press account and see the footprint of a new world—there it is, lurking amidst the smudged black ink in the thin column. Sometimes it is a technological breakthrough that promises to make life easier, safer, or longer. But sometimes it is a redefinition of the parameters of human society. And sometimes it’s downright frightening. Time to pull it out of the banality of that newsprint and think.

And it happened on Sunday morning. The article is by Eric Lichtblau, James Risen and Scott Shane, and it’s called “Wider Spying Fuels Aid Plan for Telecom Industry.” Take the time to read this article carefully. Here are a few key grafs:

For months, the Bush Administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program. But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime.

The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

What Lichtblau, Risen and Shane are describing is the dawn of a new National Surveillance State in the United States, a public-private partnership. And the object of this partnership—which emerges as a criminal conspiracy, quite literally, between telecom companies and the Bush Administration—is to watch and listen to you and everything you do. Of course, they will say it’s about “terrorists,” or about “narcotics traffickers.” And indeed every authoritarian and wannabe totalitarian system from the dawn of time has cast its snooping on citizens in just these terms. No problems with the honest citizen, they say, it’s the criminals and the enemies we’re after. We need your cooperation. But the technology used makes no such distinction—it is snooping on everyone.

We learn about this mostly thanks to an engineer who saw what was happening and began to ask questions

The accusations rely in large part on the assertions of a former engineer on the project. The engineer, who spoke on the condition of anonymity, said in an interview that he participated in numerous discussions with N.S.A. officials about the proposal. The officials, he said, discussed ways to duplicate the Bedminster system in Maryland so the agency “could listen in” with unfettered access to communications that it believed had intelligence value and store them for later review. There was no discussion of limiting the monitoring to international communications, he said.

“At some point,” he said, “I started feeling something isn’t right.

So the United States intelligence agencies in cahoots with major telecom providers are intercepting and reviewing your communications. This is occurring without warrants. And the legal community is in accord: it was criminal conduct. And that’s why the Bush Administration is frantically pushing right now for immunity: to ensure that its collaborators face no adverse consequences from their criminal acts. What kind of society does this sound like?

Now let’s tack on one further extremely disturbing fact. One telecom company said “no.” It was Qwest. The Qwest response to overtures was simple: “We’d love to work with you on this. But you do need to change the law so we can do it legally.” Apparently as soon as that happened, Qwest lost a series of important government contracts. And the next thing you know, the Justice Department was feverishly working on a criminal investigation looking at Qwest’s CEO on insider trading allegations—amidst very strange dealings between the Justice Department and the federal judge hearing the case. Of course, this is all the purest coincidence. Or maybe not. What kind of society does this sound like?

This is not the America we used to live in. It is not a nation that stood as a bulwark for civil liberties. It is a nation with an executive who is drunk on power. An executive who refuses to respect the legal constraints established by the Constitution, and even the criminal law.

As dawn turned to midmorning in the era of technology, thinkers agreed that the great threat facing mankind was the threat of a totalitarian rule. They saw the vision that Orwell transcribed, in which human freedom would be horribly constrained as the species assumed the role accorded to cogs in some massive machine. This was hard for Americans to envision—they were born and lived in a country that knew and seriously guarded civil liberties. But those who traveled abroad saw the evidence plainly enough, especially in the twenties and thirties, as totalitarian states rose and enslaved their peoples. Then fascism rose and fell. And after it, the efforts to build a Marxist-Leninist world imploded as well. But it’s wrong to suppose on the basis of these failed nightmare-utopias that the threat Orwell envisioned had passed. It has merely moved on, to a new form.

How would America and its market system behave in the face of such a threat? In the mind of some, like Hayek and Mises, the forces of the market would restrain an overreaching government and would serve to maximize human freedom. We needed to be on guard, of course, against the rise of monopolies and preserve the competitive edge. And we have to adhere rigorously to a principle of legality. As Mises reminds us, it is the centering of power in the hands of a few men and not in the rule of law, that presents the gravest threat to individual freedom in the market economies.

I don’t object to private businesses, including those in the telecommunications sector, cooperating with government, including the intelligence services. They should do so, of course, to promote society’s interest in collective security. But this cooperation needs to occur within the boundaries of the law, and it must respect the rights of their customers, and more broadly of the citizenry. What the Bush Administration and the telecoms did was wrong, and both should be held to account for their wrongdoing. That’s the way a state committed to the rule of law works.

The question is now before the Senate for a vote on the telecom amnesty bill. As usual, the White-Flag Democrats are abandoning opposition to the Administration’s initiative and are laying the foundation for it to be steamrolled through the Senate. Harry Reid’s conduct in particular has been reprehensible and spineless. This vote is a milestone on the road to serfdom. It’s time to put up a roadblock instead. Write or phone your senator immediately and advise them that you oppose the grant of amnesty for warrantless surveillance to telecommunications companies and that you expect them to do the same.

The Harper's Magazine Foundation

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