nsa-eff-greenpeace-airship

Today, the Electronic Frontier Foundation (EFF) added a new weapon to its arsenal in the fight against mass surveillance by the NSA: A 135-foot-long thermal airship. The glorified hot air balloon, owned by Greenpeace, was launched over the NSA’s Utah Data Center brandishing the message “NSA Illegal Spying Below” along with the URL to a new website called StandAgainstSpying.org.

Leaving on the table for a moment the unlikelihood that a bright green blimp will lead to meaningful NSA reform, one of the names on EFF’s partner list should give pause to anyone familiar with fringe libertarian groups. The partner listed second-closest to the top on the new website is the Tenth Amendment Center, a group with a history of trying to convince cooler heads to “nullify” undesirable government programs under the Tenth Amendment. For those a little rusty on their Constitutional Law, the Fightin’ Tenth reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What that means, at least using the interpretation of the Tenth Amendment Center or “Tenthers,” is that the federal government can’t force states to do anything except what the Constitution explicitly allows. And that includes mass surveillance.

But hey if you oppose mass surveillance and are looking for any legal way to fight it, then what’s so bad about teaming up with some Tenthers?

Because the Tenth Amendment Center wants to do more than banish the NSA. It wants to use whatever bipartisan issue it can to muster widespread support for Tenth Amendment-based nullification (or other federal law circumvention), and then use that as a precedent to attack nearly every federal program under the sun, from Civil Rights Laws to the Affordable Care Act to the EPA to the Federal Highway System (seriously). The nullification argument also has a “nasty legacy,” writes the Atlanta Journal-Constitution’s Jay Bookman. “It helped precipitate the Civil War, and in the 1950s and early ’60s it was cited by Southern states claiming the right to ignore Supreme Court rulings ordering the end of segregation.”

Granted, Tenthers haven’t taken a strict “nullification” approach when it comes to the NSA, but they’re applying the same principle. According to ThinkProgress, the group is looking to leverage the “anti-commandeering doctrine” by which the US government generally won’t command a state to use its own resources to carry out federal orders. For example, federal agents could technically enter a state with legalized marijuana and arrest pot smokers, but it can’t order that state to use its own police force to do it.

Here’s how that relates to the NSA: Tenthers wants to pass legislation in states that would block state-owned utilities, like water and electricity providers, from powering NSA facilities. This would have little effect in most places, but in Utah, which is home to a $1.5 billion NSA-led data center, such legislation could literally turn off the lights at one of the nation’s most powerful surveillance hubs — And the federal government could do nothing about it.

Again, it sounds like a pretty clever way to fight back against mass surveillance. But ThinkProgress’ Zack Beauchamp and Ian Millhiser explain why that could have disastrous effects for a host of federal social programs:

This tactic, of using state power to prevent the federal government from operating, should trouble progressives regardless of how they feel about the NSA’s surveillance program. If Utah can cut off water or electricity to the NSA, what’s to prevent Texas from cutting off power to federal agencies that provide health care to poor people, or North Carolina from turning the lights off on federal voting rights attorneys challenging their comprehensive voter suppression law?

I understand that opponents of mass surveillance seek allies wherever they can. In its press release for the airship, Greenpeace is quick to call its group of partners “diverse.” That’s putting it lightly. The Tenth Amendment Center has praised efforts in Arizona to nullify “all rules imposed by the United States Environmental Protection Agency.” I can’t think of an endeavor more in opposition to Greenpeace’s mission than that.

I know they say, “Keep your friends close and your enemies closer.” And I’m all for bipartisanship. But the potential collateral damage of aligning with Tenthers’ efforts to use nullification or anti-commandeering techniques to kneecap the NSA is simply too great for progressives. And if I have to pick between the government reading my email and the erosion of eighty years of social welfare programs, infrastructure improvements, and civil rights legislation, I’ll take the former.

[image via Greenpeace]