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In the wake of all the “leaks” by Edward Snowden of the National Security Agency’s collection programs and the resulting debate over those programs, one constantly hears from elected officials and the commentariat about the need to strike the right balance between privacy and security. More often than not, this is followed by a suggestion that, as a country, since 9/11, we haven’t. Putting aside for the moment that no one has come up with evidence that the NSA, in spite of all the powerful capabilities it has at hand, has done anything untoward, the common refrain is that we are only a step away from the era of “Big Brother.”
Yet anyone who knows anything about the modern American intelligence community knows that it is virtually impossible for any of its major components to carry out a program significantly impinging on American privacy and get away with it for any extended period. Between the agencies’ own inspector generals, the oversight provided by the courts, Congress, and the executive departments and agencies themselves, any effort to stray outside the lines is not likely to go undetected or unreported for very long.
A telling example is the FBI’s expansive use of “national security letters,” administrative subpoenas used by the bureau to obtain transactional information from third parties—such as credit card information, travel history, etc. Under the Patriot Act, the FBI was given more discretion to employ NSLs in connection with counterterrorism investigations. In short order, having been blamed in part for not preventing 9/11, the bureau took advantage of the new provisions and greatly expanded its NSL requests. But this hardly went unnoticed. Congress, the courts, and internal FBI and Justice Department auditors all weighed in to impose greater rigor on how this investigative tool was used, with the result that the number of NSLs has decreased, oversight has been beefed up and, with the president’s most recent directive, greater transparency ordered in their use.
Moreover, the worry that the intelligence community will become a “rogue” entity ignores the undeniable fact that there are intelligence community employees who would probably not hesitate to go public if they really thought American liberties were being threatened. While there are always “go along, get along” individuals in any bureaucracy, since the mid-’70s, intelligence officials know crossing such lines will almost certainly lead to more trouble than it’s worth, either to them or their agencies.
Part of the problem—indeed, a key problem in the debate—is that we have subsumed civil liberties under the expansive banner of “privacy” and ignored just how complex the notion of privacy is in today’s world. When talking about civil liberties, it is well to remind ourselves that the kind of judicially authorized telephony data that NSA collects and that we are arguing about (numbers dialed and time stamps, but not content) has long been held by the courts not to violate the 4th Amendment’s proscription against “unreasonable searches” by the government. Nor have any of our other core liberties—such as, freedom of the press, religion, conscience and association, the right to vote, the right to move from state to state, and, yes, the right to bear arms—been undermined in any real way by the government or its intelligence agencies since 9/11. If anything, other than the aggravation of airport screening and tightened border controls, Americans are just as free today as they were on September 10, 2001.
Privacy is a different matter. Americans want privacy in theory but give it away to all kinds of entities on a daily basis when they use the Internet for buying books or movie tickets, search the Internet for this or that, post their daily affairs on social media, or even commute to work using an EZPass which, while it allows John Doe the convenience of bypassing long lines at the toll plaza, records precisely when his car was on a certain stretch of highway and can be preserved in a searchable form, ad infinitum. If anything, the intelligence community is far more careful with the data it collects about Americans than are Google, Amazon, and Facebook.
Because we’ve lost sight of what our core civil liberties are, we tend to forget those periods in American history where getting the balance between safety and liberty was far more difficult and problematic than it is today. During previous wars, American presidents have suspended the writ of habeas corpus, ignored the authority of the courts, censored publications, compromised mail, and interned over a hundred thousand Japanese immigrants and Japanese-American citizens in “war relocation camps.” We’re nowhere near that state today.
It was all well and good that in his speech on January 17, the president said that “throughout American history, intelligence has helped secure our country and freedom.” That’s certainly true. But when President Obama then went on to offer up the “cautionary tale” of East Germany, where “vast unchecked surveillance turned citizens into informers and persecuted people for what they said in the privacy of their own homes,” he fed a fear among the American public that is neither responsible nor warranted by reality.
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