The Enemy of My Enemy is My Friend: Teaming the NRA with the ACLU

Shortly after the release of information by Edward Snowden revealing the United States Government’s abuse of a provision of the Patriot Act, and confirmation by President Obama that an order of the FISC (Foreign Intelligence Surveillance Court) requires the country’s three largest phone companies, including Verizon, to turn over all wireless and landline customers’ daily, detailed call information to the federal government, the ACLU filed suit against the heads of our national intelligence agencies.  The lawsuit names as defendants the heads of the National Security Agency, Federal Bureau of Investigation, Department of Defense, and Department of Justice, and alleges violations of the First and Fourth Amendments. 

There isn’t really anything unusual about the ACLU initiating this lawsuit.   Freedom of speech and the ability to live free from unreasonable searches and seizures are routine gauntlets for the ACLU.  What is unusual about this particular case is the breadth of allies filing amicus briefs (supportive briefs filed by friends of the court to help make the ACLU’s case); and one “friend of the court” in particular:  the National Rifle Association.   The NRA and the ACLU are joining efforts to convince the court that government behavior has reached the point of intolerable invasion of our privacy and infringement upon our Constitutional rights. 

This lawsuit sends a clear message to our government that Americans have had enough.  Regardless of background, Americans expect privacy and governmental respect of the Constitution.

The first paragraph of the Complaint challenges the federal government’s acquisition of the ACLU’s telephone records under the auspices of the Patriot Act.  The ACLU states that the “practice is akin to snatching every American’s address book – with annotations detailing whom we spoke to, when we talked, for how long, and from where.  It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations.”  Hmm…this does sound familiar.  In fact, it sounds quite a bit like what the Fourth Amendment is supposed to protect.

It shouldn’t be difficult to understand why the ACLU, a non-profit organization which frequently represents clients who wish to file suit against the federal or state governments would rather that same federal government (potential defendant) not collect the organization’s private communications with current and potential clients, legislators, journalists and others.  The organization rightly claims that this collection of data could have a “chilling effect” on its potential clients.

But what dog does the NRA have in this fight? 

The NRA’s Bylaws state that among its “Purposes and Objectives” is “[t]o protect and defend the Constitution of the United States”.  The NRA argues in its brief that the mass surveillance program could “allow identification of NRA members, supporters, potential members, and other persons with whom the NRA communicates, potentially chilling their willingness to communicate with the NRA.”   The NRA also argues that the mass surveillance program “could allow the government to circumvent legal protections for Americans’ privacy, such as laws that guard against the registration of guns or gun owners”.  

A little known fact is the fact that the NRA and the ACLU previously partnered to support an amendment to what became the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132:  it is a subsequently modified and codified provision of that amendment that the federal government is interpreting and implementing to obtain the daily phone records.   So, a portion of the law the NRA and ACLU previously supported was revised, codified, and is the very law that is now being abused.   

History always reveals such insight into a situation.