On the NSA Crisis

Questions of security, intelligence, and the attempts to reconcile these issues with those of the individual rights and civil liberties of the American people have, for better or worse, come to define in many ways the homefront struggle in the War on Terror since 2001. Perhaps it is well that they have, as, in an era of rapidly advancing information technology, social media, and interconnectedness, they are challenges that we as a society would inevitably come up against at some point even if the tragedies of September 11th had never transpired. Nonetheless, the atrocious manner in which these issues have been handled since that time speak volumes about our culture’s moral philosophical unpreparedness to deal with such issues as cut to the heart of our notions of privacy, rights, and the relationship between liberty and security. In all, I have to give America an even D+ in its handling of these vital, culturally definitive questions.

Thus, as disappointing and infuriating as the recent NSA scandal has been, it cannot reasonably be said to be all that surprising in the context of the last twelve years. The idea of the government listening in on phone calls or reading online communications has been the subject of a great deal of dark humor since the passage of the Patriot Act—now we simply have confirmation. There is another element of this recent fiasco, however, which, though perhaps equally predictable, is still tragic and disheartening to observe. That is the culture of apologism, rationalization, and attempts at justification that have sprung up in the wake of this revelation from both the left and right, affirming the axiom that in Washington it is usually the worst of ideas that make for the best consensuses.

On the left, Senator Diane Feinstein (D-CA) has called the release of details regarding the NSA’s monitoring of Americans’ phone calls by Edward Snowden “treason,” while defending WikiLeaks source Bradley Manning as “a classic whistleblower… inspired by the public good.” The distinction is curious, as Snowden–we are told–carefully sifted through his releases of information to ensure that no American lives were placed at risk or active field agents compromised by his actions; Manning, by all accounts, took no such care. If the information we have on each case is complete and valid, then perhaps the senator’s complaint has more to do with the WikiLeaks release’s incrimination of the Bush administration, which she would no doubt find far more agreeable than the NSA leak’s possible implications for President Obama. Or perhaps it’s simply another instance of a politician abandoning all moral consistency. We may never know.

Though Senator Feinstein’s words in tandem with the president’s saber-rattling in the last few days might suggest an image of the left circling its wagons, conservatives have eagerly joined in the fray to defend the flagship legislation of the Bush Administration’s ‘War on Terror’: the Patriot Act. Speaker John Boehner (R-OH) has shared in Feinstein’s characterization of Snowden as a “traitor”, John McCain has risen to the defense of the NSA program and condemned the leak, and think tank intellectuals on the right have shown themselves divided. The Cato Institute has shown predictable assertiveness and character. Heritage has remained conspicuously quiet on the issue—possibly distracted with the immigration debate, possibly (and wisely) considering their thoughts before entering the fray.

In stark contrast to any such measured approach, the conservative American Enterprise Institute appears to be coming out swinging against Edward Snowden in two editorials published June 10th that, taken together, reveal an odd blend of condescension, bitter anger, and the same stale arguments and rationalization that commanded influence over a population in fear, still reeling from September 11th, but which now, tempered by the kind of perspective that detachment from a period in history can bring, show their weaknesses in terms of both respect for individual rights and practicality in ensuring our security.

One of these, “Big Brother Isn’t Watching You” by Marc A. Thiessen, published in the Washington Post, commits the trademark error of Patriot Act defenders by embracing the idea of national security as apart from the security of the rights of individual citizens. Thiessen decries how the exposures of the Verizon phone monitoring and the PRISM program (which monitors social media) are “damaging to national security. ” However, if we consider ‘national security’ as the security of the lives and rights of individuals, one can easily see that such programs, which violate the right to privacy of all of those who are being monitored, are, by a stringent standard, damaging to national security themselves. Perhaps not damaging to the government’s well being— but since when has a government’s interest ever been synonymous with that of its people?

Thiessen says “these leaks give terrorists information they did not have about our collection activities.” One could as well contend that they give American citizens information about the same, and it is not for the government to engage in such overbroad collections of information about private citizens on the off-chance that someone, somewhere in there might be considering something illegal. He goes on, “They undermine the willingness of American companies to cooperate with us because these leaks have put their international reputations at risk.” I would only add: ‘As well they should—assuming that the companies knowingly allowed such intrusions.’ Finally, “And they teach everyone—including sources and liaison partners—not to work with us because we cannot keep a secret.” What sources? What partners? In what context? On what terms? By whose authority? Context is dropped to make the government into a victim.

Thiessen would prefer that we be “outraged by the damage done by these leaks.” (‘Damage to what?’, we might ask.) Nonetheless, he assures us that the best thing to do is simply “Calm down, folks. Big Brother is not watching you.” He goes on to explain some of the same characterizations of the NSA program that have been tossed about since the onset of the scandal—that only “metadata” is being compiled, not call recordings, and that the details on any individual are not assessed until some probable cause is acquired. As for the “metadata” matter, compiling such information is not as innocuous as many would make it seem. As Cato’s Gene Healy put it (in an article making excellent parallels to similar violations in the 1970s),

“It allows the government secretly to track who a target communicates with and where he’s physically located. That knowledge can be used to unearth who’s leaking to reporters, when and where political opponents are meeting — even who’s sleeping with whom.

The NSA’s massive call-records database is thus a potential treasure trove for bad-faith political actors — it can be used to ferret out the sort of information that governments have historically used to blackmail and control dissenters.”

Thiessen’s casual view of such compilations being harmless until the acquisition of probable cause is equally careless. Such broad accumulations of information on citizens is not, as Greg Gutfeld has termed it, the equivalent of security cameras in a public place monitoring any who happen by. Rather, it is the equivalent of the NSA acquiring personal tax records or medical records on an individual and stowing them away, promising not to open them unless there is some ample cause, but acquiring and holding them nonetheless—just in case that day ever comes. The act of acquiring such information itself is an act of encroachment.

On what terms and by what rules, then, does Thiessen propose they should they be accessed? Surely by a high, objective legal standard set through law by Congress? Thiessen is void of any curiosity, suggesting we “pray those restrictions are not revealed—the terrorists would love to learn what they are.” He forgets: so would any American interested in the defense of their own rights. He closes the discussion by suggesting that the only ways we can hope to thwart terror attacks is by such overreaching surveillance measures, torture interrogations (sarcastically noting, “thanks to Barack Obama, we don’t do that anymore”), and good old fashioned undercover intelligence work (which he can’t refute, so he gives an anecdotal instance of it not working and hopes that we are satisfied).

Always ready to comfort and assuage us, Thiessen states categorically, “When Obama continues a Bush-era counterterrorism policy, it is not an outrage—it is a victory.” By all rational standards, this is a bold claim to make about one of the most controversial wartime presidencies in American history. It is broad enough to be an affirmation of the policies of indefinite detention carried out the world over, enhanced interrogation (torture), extraordinary rendition, Guantanamo Bay, Abu Ghraib, the accommodation of more ‘agreeable’ Islamist parties as a means of containing jihadists, the broader peace-through-welfare-and-democracy approach to overseas conflict, and, yes, the vast implications of the Patriot Act and Homeland Security bureaucratic infrastructure, the limits of which are still being tested and explored.

Mr. Thiessen may well contest any one of these programs or more, but his writing and its broad affirmation of the Bush-era policies give us no reason to believe so. If he does hold some reservations about any of the above, perhaps he could understand the reluctance of many to dive head first into a passive acceptance of the mass accumulation of data by the NSA on American citizens. Again, he consoles us, it is all “being done with a warrant, issued by a federal judge, under authorities approved by Congress.” And maybe, in the end, that is the problem: many of the worst injustices committed in our country on a daily basis are entirely legal. In light of that, whatever happens with Edward Snowden (who has, at the time of this writing, disappeared from his Hong Kong hotel room) and the NSA’s surveillance program, perhaps the best lesson to be learned by Americans is a more conscientious approach to the laws that we support in a time of crisis and a remembrance of the fact that what is enacted in wartime often prevails still in peace, that the powers we give to the officials we favor remain in place for use by those we oppose, and that principles, like tightrope, are best supported at the extremes, but wilt languorously when propped up at their middlemost point.


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