Only partisans and ideologues are not conflicted about the intelligence community's domestic spying program and the trade-off between security and liberty. Four basic questions deserve attention:
1. What is going on?
- The National Security Agency has been making a record of virtually all telephone calls in the United States - number, duration, origin and destination - in a program whose roots reach back to at least 2006. No listening in is allowed without further court authorization.
- In its PRISM program , which targets internet communication involving non-Americans reasonably believed to be located outside of the United States, the NSA gathers substantial information from the servers of Apple, AOL, Facebook, Google, Microsoft, PalTalk, Skype, Yahoo, and You Tube - much to the chagrin of the companies which fear for their customer relationships.
- In the past, and presumably ongoing, the NSA has obtained credit card information which shows vendors if not items - an abortion clinic, a mental health doctor, Rusty's Gun Shop or Kitty's Web Site for example.
- In (hopefully) separate silos the federal government has access to information on voting records (party registration; voting history); income and tax payments; and, increasingly, medical records, DNA, and miscellaneous other data elements.
- The NSA (which reports to Defense Department) has mushroomed since 9/11, now including a $860 million, 600,000 square foot data center in Fort Meade, Maryland and a soon-to be-opened $1.9 billion, even larger facility in Utah. A majority of the technical work has been outsourced to private contractors, with almost 500,000 contractors and 900,000 government employees having "Top Secret" clearances.
2. What is the legal standing?
- The longstanding tradition, molded by the Supreme Court, is that federal authorities have the right to monitor and record the outside of an envelope in the mail and the origin and destination of phone calls (but not the content) on the premise that the caller has voluntarily turned that information over to a third party - the phone company.
- The Foreign Intelligence Surveillance Act of 1978 prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" within the United States. Warrants from a secret court are required for surveillance of foreigners for over one year and for United States "persons" (citizens and lawful permanent resident aliens) for over 72 hours - but since 1979 only 11 of 33,900 requests have been denied.
- The Patriot Act of 2001, as modified in 2006 and 2011, broke down the wall between criminal investigations and foreign intelligence activities and removed the requirement that surveillance targets be non-US citizens and an agent of a foreign power, while still attempting to protect citizens' constitutional rights.
The ACLU has challenged the application of the FISA and Patriot Acts, arguing that the information being collected does not have the required connection between the seized documents and a terrorism investigation. Representative Jim Sensenbrenner, the floor sponsor of the Patriot Act has made the same point to the Attorney General. For his part, the Attorney General has refused to share with Congress the administration's legal interpretation of why what they are doing is within the laws.
3. Can we trust the government? Has this administration been guilty of political abuse by design, or by inability to control subordinates? What about future administrations?
- The most obvious chilling example of political activism by supposedly non-partrisan technocrats is the IRS scandal in which employees targeted Tea Party and other conservative organizations, with direct knowledge by Washington headquarters officials who denied to Congress under oath that there was such targeting despite their knowing otherwise.
- In a reflection of the President's attitude about honesty and transparency, Susan Rice has been rewarded for her lead role in telling politically-motivated known untruths about Benghazi by being named National Security Advisor.
- The Attorney General has been found in contempt of Congress for refusal to provide documents about Fast and Furious, has denied being aware of a months' long tapping of Associated Press phones done under warrant from his department, and denied ever hearing about prosecuting reporters shortly after signing a warrant naming a Fox News reporter as a "co-conspirator".
- In response to Senator Wyden's question, "does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Director of National Intelligence Clapper replied under oath "No, sir" in what he later called the "least untruthful manner".
- As an indicator of who might be subject to surveillance, Janet Napolitano's Department of Homeland Security has warned that acts of domestic terrorism could come from unnamed "rightwing extremists" concerned about illegal immigration, abortion, increasing federal power and restrictions on firearms -- and singled out returning war veterans as susceptible to recruitment. Conversely, the killing of 13 at Fort Hood by a Muslim Army major shouting "God is Great" was referred to as an act of "workplace violence."
And that's just the recent stuff. Whether due to political agendas, incompetent management, or just a group of bad personnel selections this reflects reality and one needs to assume that the massive NSA database will eventually fall to the same temptations.
4. What can be done?
With NSA claiming success in foiling a dozen plots - some with questionable hyperbole, most without any real disclosure; a majority of citizens willing to prioritize safety; and computer power growing exponentially, the government can keep an individual dossier on everybody - where they live, their financial and health records, groups they belong to, their DNA, their Internet browzing habits, their social media friends, their school records; and on and on.
This is probably a uniquely good time to have the discussion about what this means for a free people:
- With a president who has been cornered into accepting it;
- With a public who understands that government power will be abused for political gain or through incompetence;
- With a press that is smarting from its own surveillance;
- With conservatives (national security as well as libertarians) who would like to limit Obama's power.
Lets hope that we have a long enough attention span to deal with the fundamental question of how much liberty we maintain and what oversight there is to limit the executive branch.
This week's video is Rand Paul's reaction to the NSA leaker - from the Senator who is the leading libertarian legislator and presidential aspirant. Commenters seem to forget that our legal system has two phases - is he guilty?; what is an appropriate punishment? It is intellectually difficult and bad for civil order to not answer the first in the affirmative.