Friday, September 01, 2006

The NSA: Liberty vs. Survival?

Most of us understand that the NSA 'probably' has used filters to pick out certain words or phrases from phone conversations for 30 years or more. Thus, if you tell a friend over the phone that you'd love to kill the president, you should not be surprised if you get a visit from the constabulary. Do we object to that? Some do. Some don't. The point is that in my every day life, the mere fact that the government may be listening to my phone conversations, does not constitute harm to me.

Now, with that said, if the IRS seizes my bank account tomorrow because an NSA geek told them that he heard me admit to cheating on my taxes, OK, now there's trouble. We must nip that right in the bud. But, if we need to avoid that extreme, we also need to avoid the extreme that says that someone in the U.S. - even a citizen - who is talking to a known Al Qaeda member overseas deserves the same privacy as the rest of us. Are we at war? Certainly some people are trying to kill as many of us as they possibly can – that’s good enough for me – so, yes, we are at war. Is the commander-in-chief ‘allowed’ to intercept enemy communications during a time of war? Hell, yes. Can the rights of citizens be restricted for the good of the nation as a whole during war time? Centuries of case law say, “Yes”. I have no objection to this program and will defend it for a couple of years - at any rate – before I again question its necessity and efficacy.

The problem most people have with the NSA program is their fear of what I have outlined above: ‘mission creep’ – and justly so, but would you rather get dunned by the IRS because we were over-cautious or vaporized by an Al Qaeda nuclear attack because we were not cautious enough? Is this a false dichotomy? Maybe, but here again is the point: We don’t know where or when our enemies are planning to strike us and if we don’t find out in time are we going to say, “Well, we lost Chicago, but at least the government isn’t listening in to my phone conversations?” Or, is every finger in the country going to get pointed at the President for failing to protect us? We all know the answer to that question. Which tools shall we say we cannot use? But, remember, if we don’t use this tool and we get hit again we may find ourselves reaching into the box later for one we’ve sworn to never use again.

One difficulty the administration had, of which we the people were blissfully unaware, is that when the current questionable NSA program was originally suggested, it probably occurred to someone that it might violate the law by circumventing the FISA court. Now, let’s say you’re the President: what do you do? Do you send a note to Congress and say we need a law to allow us to do this? Do you start the program and then ask Congress to OK it with a new law or amendment to the current FISA statute? Or, do you decide that we need it now, regardless of its legality - and it must remain secret? The regrettable part is that had the President contacted Congress – at any time – debates and votes would have been required, knowledge of the program would have become public and severely damaged its effectiveness. Thus, the President really only ever had the last option. Now, as it happens, it did leak and its efficacy has been weakened, but the President gets full marks for doing the right thing. Laws are designed to deal with certain situations. When situations change, however, the laws rarely do – and then only very slowly, in a conspicuously open forum. That’s not what’s needed when people are - as we speak - planning attacks designed to kill hundreds of thousands of us.

Judge Richard Posner of the University of Chicago in a recent interview reminded me that 100 years ago, there were few dedicated telephone lines and we were perfectly content with party lines on which a dozen or more people could easily eavesdrop. Does the availability of privacy create the right to it? It just may be that our current expectations of privacy are just that – expectations – and have no corresponding basis in law.


Anonymous Ron Goodwyne said...

You are missing a point here. While I would agree that certain exceptions to normal rights are called for during a time of war, this is not a case where an exception is necessary.

The Constitution nowhere grants rights to enemies of American in other countries. The NSA wiretapping program taps the phone calls of known terrorist overseas. The questions arise when those calls involve someone within the US on the other end of the call but that should not give anyone cause for alarm. Even in a warranted wiretap only one end of the call needs a warrant. It is not necessary to get another warrant for everyone the target calls, although there may be cases where you'd want to tap that person too.

The point is, who the terrorist is calling is irrelevant in terms of warrants. If the terrorist happens to call someone in the US, so what? We are still engaging in surveillance of a foreign enemy and that falls under Article II, Section II of the Constitution, not the Bill of Rights since the Constitution does not extend rights to our enemies.

5:06 PM  

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