A few weeks after 9/11 there was a meeting at my house. What it was about, I don’t recall. But of course the conversation came around to the bombings of the World Trade Center and the Pentagon. I remember a woman practically in tears, saying that she was so scared she was thinking of moving to Canada. Now I suppose Canada’s a less likely target than the Great Satan, but that might make them an easier hit. If the jihadis will bomb London subways and Spanish trains, who’s to say they wouldn’t target Toronto or Ottawa? But that’s a risk management issue. It’s not a response to a determined enemy whose goal is to demolish western civilization and return us to a monolithic, theocratic Dark Ages. Under those circumstances, as GW said, “You can run but you can’t hide.” But the cost includes giving up those freedoms and liberties that make our enemies envious.
Unfortunately, the National (In)Security Agency (NSA) is on a mission to do just that. When asked before Edward Snowden blew the whistle on them, you’d get blatant perjury from former NSA head honcho General Michael Hayden who, under oath at a Senate hearing, categorically denied scooping up information on millions of American citizens. Why did he lie? Was it because he had something to hide? It usually is when you’re lying. Now, after the Snowden revelations, we are being given partial admissions, excuses and promises that the government will put some feeble reforms in place. Why should we trust their assurances? They are obviously willing to lie, bold faced, to U.S. senators.
Ask NSA’s current head, four-star general Keith Alexander, and he will deny that they are searching the records of three hundred million Americans. He will testify that all they get is three hundred million phone numbers of callers, the phone numbers of the recipients, the date, time and length of call. He will tell you that he doesn’t identify the people behind those phone numbers, unless the calls look suspicious and when that happens they apply metadata tags to see whether certain words appear in the call. This, he contends, is not really a search, and if it is, they are relying on rulings by a “court”—which, he reluctantly admits, is the notorious FISA court, the only court in the U.S. where the judges are anonymous, there is no right to appear and oppose the government’s scheme and the decision is secret.
If we don’t agree that they can keep it all secret, Gen. Alexander tells us, the terrorists will find out and we’ll all get blown up. Well, a search is a search is a search. In fact, that’s what the NSA is supposed to be doing—searching. And the Fourth Amendment to the US Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This amendment came about because the drafters of the Constitution were attempting to address an abuse, the general search. A general search means the government is just casting a net and pulling in anything and everything they can snag. The drafters said the government couldn’t do that. But, by Gen. Alexander’s own admissions, that is precisely what the government is doing. Collecting three-hundred million phone numbers with dates, times, length and places sounds to me like the seizure of phone records of an entire population. The claim that they don’t always follow through by getting the names of the caller and recipient, or listening in, which Gen. Alexander argues, makes the exercise constitutional, is dissembling because the government can do it if they want to. This is nothing more that what police do when they sift through evidence. Some is useful. Some is not. It’s whether you stole the goods that counts, not whether you were able to fence them. And despite this fig leaf of a FISA court, the law is what the plain language of the Fourth Amendment says it is. You want to seize phone records? Get a warrant based upon probable cause.
What NSA is doing is getting probable cause for a further search based upon an unconstitutional seizure. And they should get it from a proper, constitutional court. A secret court is unconstitutional and a purported constitutional lawyer like President Obama knows it. King George III had those kinds of secret courts. It is the reason for the Fourth, Fifth and Sixth Amendments. Lord Acton, a Nineteenth Century British historian and politician said: “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”
Right now I am fearful that our president has succumbed to a kind of Lord of the Rings temptation. I know it’s a lot easier to cut the corners and he sure doesn’t want a 9/11 on his plate, but let’s just say that the point of the Bill of Rights is to keep the government from cutting those corners. Otherwise, pretty soon, we’ve got no meaningful Bill of Rights and Al Qaeda wins.
There’s this old trial lawyer joke. “If you don’t have the facts, pound on the law. If you don’t have the law, pound on the facts. If you don’t have the facts or the law, pound on the table.” The general does just that when tries to scare us by claiming that if we don’t allow the government to trample on the Constitution we’ll get our asses bombed. Engendering fear is the last resort for guys without a case. “Surrender your freedom,” they tell us. “Let us protect you and you won’t get hurt.”
Now I’m not one to advocate that the average Joe should step up to pinch-hit for pros in the security game. That’s not my cup of tea. I pay taxes for better people than me to do that dirty work. And I can understand the zealotry that many of them seek to bring to their mission. But, no matter how professional they may be, these NSA people are human after all. They have a perspective that ranks catching terrorists, playing free video games and checking out wanna-have girlfriends above protecting our constitutional rights. And they have an interest in calling sketchy people out there terrorists because the more of them there are—whether true or not—the more they can sell their invasions of our liberties to a frightened citizenry. Terror is an industry, not just an act.
As you can tell, I am pretty skeptical of the need for all this fear-driven surveillance. I don’t see why we ought to believe that the NSA is run more effectively than, let’s say, Congress. I don’t believe that the NSA’s computer system is less flawed than the one that brought us the Obamacare rollout. I believe that with hundreds of millions of calls to monitor, a bunch of low-level enlisted personnel dragooned from various military services are going to miss a load of leads in the first place, then dig a bunch of dry holes, then miss simple coded messages. Who the hell are we kidding here? Our enemies are as competent and capable as the next guy, as well, unfortunately, as being more determined. We just aren’t going to catch all the balls they throw our way. Benghazi proved that. We have a global presence that’s spread very thin, and we piss off a lot of people around the world. Us getting attacked is the price we pay for that strategy.
When I hear these explanations from NSA people who have a vested interest in keeping their sinecures and their raison d’etre I am remind of the last line of our national anthem: ”The land of the free and the home of the brave.” And I wonder, where the hell all those folks are, now that our Fourth Amendment rights are hanging in the balance.