David Cole is a professor at Georgetown University Law Center, a volunteer attorney for the Center for Constitutional Rights, the legal affairs correspondent for The Nation, and a regular contributor to The New York Review of Books. He is the author of seven books, including the American Book Award-winning Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. He has litigated many significant constitutional cases in the Supreme Court, including Texas v. Johnson, United States v. Eichman, which extended First Amendment protection to flagburning, and, most recently, Holder v. Humanitarian Law Project, which challenged the constitutionality of the statute prohibiting material support to terrorist groups, which makes speech advocating peace and human rights a crime. Cole has received numerous awards for his human rights work, including the inaugural Norman Dorsen Prize from the ACLU for lifetime commitment to civil liberties.
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The NSA disclosures are stunning and raise serious questions about our governance and our privacy. It is doubtful that anyone thought the Patriot Act authorized the government to pick up phone data every time any American picks up the phone to call anywhere.
Privacy makes it easier for terrorists and other criminals to pursue bad ends. But privacy also makes it possible for the rest of us to live our lives with intimacy, to develop our personalities and ideas and associations without fear of government oversight, and to think and act for ourselves.
The Supreme Court long ago ruled that phone call data enjoys no Fourth Amendment protection. Justice Sonia Sotomayor has suggested that this doctrine needs to be reconsidered, but until that happens there are no constitutional impediments to such wholesale vacuuming up of data without any individualized basis for suspicion.
The NSA spying program not only violates a specific criminal prohibition and the separation of powers, but also raises serious constitutional questions under the Fourth Amendment.
If, as the Obama administration would have it, the state can engage in such monitoring without first developing any objective basis for suspicion, privacy may become as quaint and obsolete as then White House counsel Alberto Gonzales once characterized the Geneva Conventions.