Uncertainty is born of everything we don't know, and the people who don't want us to know what they're doing in our name are its midwives. They know what they're doing. They are cultivating it quite deliberately, and for their own purposes. Very little of what they do is accidental. An uncertain people is a people easily led. That's the way it works now. That's the way it has always worked.
Charles P. Pierce, Esquire
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(Illustration: Vine of Life)
July 29, 2014 | Now, it's the folks at Human Rights Watch who are pointing out that, while Edward Snowden, International Man Of Luggage, is not very good on television, and while Glenn Greenwald's probably a major doodyhead whom nobody will play with at recess, what the surveillance state in this country is doing -- and especially, what it's doing to national-security journalists -- continues to be a genuine threat to democracy, which is something we all used to value even more than whether or not someone is good on television. What's happening to the journalists is bad. What's happening to the lawyers is worse.
Lawyers we interviewed for this report expressed the greatest concern about situations where they have reason to think the US government might take an intelligence interest in a case, whether it relates to the activities of foreign governments or a drug or terrorism prosecution. As with the journalists, lawyers increasingly feel under pressure to adopt strategies to avoid leaving a digital trail that could be monitored; some use burner phones, others seek out technologies they feel may be more secure, and others reported traveling more for in-person meetings. Some described other lawyers expressing reluctance to take on certain cases that might incur surveillance, though by and large the attorneys interviewed for this report seemed determined to do their best to continue representing clients. Like journalists, some felt frustrated, and even offended, that they were in this situation. "I'll be damned if I have to start acting like a drug dealer in order to protect my client's confidentiality," said one. The result is the erosion of the right to counsel, a pillar of procedural justice under human rights law and the US Constitution. Uncertainty is a significant factor shaping the behavior of both journalists and lawyers. The combination of the sheer number of surveillance programs, the complexity of the underlying legal regimes, and the lack of clarity as to their scale and scope renders it practically impossible for any layperson to discern which forms of communication and data storage are secure and when they may be reasonably subject to surveillance.
Charles P. Pierce has been a working journalist since 1976. He is the author of four books, most recently Idiot America. He lives near Boston with his wife but no longer his three children.
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