If people from these parts of the world believe, or have reasonable cause to fear, that their communications with Americans will be intercepted by the United States government, will they continue to communicate with American individuals and organizations that could help them, or that could benefit from their information? One can say, well, they are not terrorists, they have nothing to fear, or even that they are the kind of people we want to help, so what does it matter if the US government gains access to their communication?
I worry deeply about this complacency for several reasons. First, levels of trust in the United States government and its intentions are very low in these parts of the world, even among people who share our stated commitments to freedom, democracy, and the rule of law. Second, some of these people are critical of U.S. policies as well as the policies and practices of their own government. Even if they are committed democrats, even if they are totally opposed to terrorist means and philosophies, will they feel free to express their concerns about U.S. policies and actions when their statements may be intercepted, stored and analyzed by super-powerful computers, and possibly some day used against them when they want to apply for a visa to come to the U.S., or seek some other source of support from the U.S.? Third, many of these people live in repressive countries that are strategic allies (or at least geopolitical friends) of the United States, countries such as Pakistan, Kazakhstan, Jordan, and Egypt. Or they live in repressive countries that were once close to the United States and could be again some day, such as Uzbekistan. These people could have cause to fear that information we gather on them could be provided to their own governments some day, for example "swapped" in order to gain from their governments intelligence we deem relevant to the war on terror. Why would the United States betray the very advocates of freedom we are trying to help around the world? I do not say we would, and I dearly hope we would not. But the record of the United States over the past fifty years does not inspire thorough confidence among people who are risking their lives and reputations to bring about democratic change, especially people who are doing so with political platforms and programs that are at times critical of the United States.
Some significant number of the people who are aided by the United States today in their fight for freedom fear they could be betrayed tomorrow. They know that geopolitics is a fickle business. They hope that the United States will be a beacon of democracy, that we will always stand up for human rights, democracy, and the rule of law. But they will not bank their lives and all of their political dreams on this hope.
Widespread, warrantless surveillance casts a chilling pall over the communication we need and want with such people. It will inhibit many of them from making phone calls and sending emails to the U.S. that report developments and deliver opinions and analyses critical of their own governments, or of the United States government, or even perhaps of powerful American or international business interests. It will inhibit my ability to gather information for research and advocacy, and to have unimpeded exchanges with scholars around the world. It will be harmful to social science research on these parts of the world, and on processes of regime change. It will weaken our ties with people in these countries, ties we need to cultivate and expand, not constrict, if we want to foster democratic change and win the war on terror. In short, this type of program of warrantless surveillance is not only harmful to the work of individual Americans like myself, it is also not in our long-term national interest.
There is also the problem of being able to communicate with students of mine who are doing their own research, or conducting research for me, in countries that are being monitored through warrantless surveillance, and on subjects that are politically sensitive, such as the prospects for democratic regime change or the opposition movement in a particular country. If these students or research collaborators need to coordinate with me from the field on their ongoing research, to report findings, consider options, ask questions, and evaluate next steps, how can they do so freely knowing that their communications are liable to be intercepted by the NSA? At what point do we place at risk individuals who have agreed to be interviewed under strict conditions of confidentiality when we discuss the content of these interviews or even the fact of these interviews through electronic communications that could be intercepted by this program? What happens to the capacity for academic research in these circumstances?
These are not merely personal matters. They affect a large number of American social scientists, journalists, and researchers studying and engaging these parts of the world. And they raise issues of principle that affect all Americans. We should have learned during the Cold War that we cannot win a war for freedom—and the war on terror is, at bottom, once again that—if we gratuitously violate the basic principles we claim to be fighting for. The foreign political and civic activists, journalists, and intellectuals affected by this program, as well as their broader publics, are very sensitive to the appearance of United States hypocrisy. One reason why the United States is held in such low esteem in these parts of the world today is because we are seen as hypocritical: We say we favor the rule of law, but we violate it when it suits us. We are against torture, but we won't unequivocally commit never to practice it. We pressure regimes to adhere to international human rights standards, and then we turn over terrorism suspects to their security agencies, knowing full well these suspects will be tortured. We say we favor democracy and human rights, but we ally with abusive regimes whenever we feel we need to. We vow to promote individual freedom as the central purpose of our foreign policy, and then we violate individual freedom with this secret, warrantless surveillance. Is it any wonder that even so many of our democratic friends and allies around the world do not trust us?
If we want to be effective in promoting freedom and democracy in the world, we have to be faithful to our democratic principles. We have to worry about the quality of democracy and the rule of law in our own country. I believe the Foreign Intelligence Surveillance Act bars the kind of warrantless intercepts of Americans' phone and electronic communications with people overseas that are being challenged in this suit. If the President of the United States can simply defy the law and the constitution by claiming the "inherent power" of the presidency and the necessity of national security, then there is no clear limit to presidential power at all and no brake on the potential diminution of our liberty. If the President can construe the law to mean what he wants it to mean, rather than follow what the Congress intended or get the Congress to change and modernize the law, then we no longer live under a rule of law, and our democracy is at risk. We cannot fight for freedom abroad by surrendering it at home.
