An audience member uses their smart phone to take a picture of President Obama speaking at a fundraiser on May 29, 2013. (AP Photo/Pablo Martinez Monsivais)
The news about the National Security Agency isn’t a molehill, but it’s not a mountain either. When all is said and done, it’s very likely that it will turn out to be a situation where there’s less than meets the eye at first—at least, if what seems to have met the eye this week is a massive, unchecked NSA that sees all and knows all.
Plus, comparing Obama to George W. Bush is wrong. Bush, you will recall, invaded several nations in search of terrorists that didn’t—as in the case of Iraq—actually exist. Except for Obama’s diminishing use of drones, the Obama administration apparently believes that counterterrorism ought to be the work of intelligence and police. From everything we know, the current program at the NSA is approved by the president, legislated and known to Congress and backed by the courts. That doesn’t mean it’s right. But it also doesn’t mean that it’s the Second Coming of Richard Nixon, the Plumbers and illegal domestic spying by the CIA.
Let’s not get all paranoid about this.
And that might start with the leaker himself, Edward Snowden. As a journalist, I’m strongly in favor of leaks, and for that I’m grateful to Snowden and to The Guardian team, including Glenn Greenwald, who helped Snowden tell his story. As a civil libertarian, I’m encouraged that Snowden’s leaked documents might start a real debate over secrecy, spying and the intelligence community’s extraordinary anti-terrorist powers. But it’s also possible that Snowden, a computer nerd who backed Ron Paul in 2012, is a little paranoid, too. It’s true that he’s facing possible deportation, arrest and prosecution for what he’s acknowledged that he’s done. But when he says that the CIA might “pay off the Triads” to kidnap him in Hong Kong, that’s a little paranoid.
Too many Americans, of course, have reacted to the NSA story with a shrug and the comment that they “have nothing to hide.” And perhaps most of them believe that, but the fact is that nearly all of us do indeed have something to hide, even it’s no more than personal communications, say, between family members, doctors, bankers and others that we’d prefer don’t become public. But what’s often overlooked in this NSA story is that none of that—at least as far as we know!—is happening. No one, including the NSA, is listening in on your phone calls or reading your e-mails. That, however, is not what Americans apparently think. Most of them, fully 85 percent, according to a poll taken before—yes, before—the NSA revelations, believe that the government can “access citizens’ phone calls, e-mails and Internet use without their consent.”
Well, they can’t.
So what about collecting all of the “metadata” on phone calls made to, from and within the United States every few months and storing it all at some huge NSA data bank? That’s troubling, yes. But not really alarming, unless it can be shown that the data is misused, say, in criminal investigations, in tracking the movements of ordinary citizens, and so forth.
In an editorial today, The New York Times asks the right questions:
Are the calls and texts of ordinary Americans mined for patterns that might put innocent people under suspicion? Why is data from every phone call collected, and not just those made by people whom the government suspects of terrorist activity? How long is the data kept, and can it be used for routine police investigations? Why was a private contractor like Edward Snowden allowed to have access to it? So far, no one at the White House seems interested in a substantive public debate.
Every one of those questions needs to be answered. But some of the answers seem obvious. The reason why “data from every phone call [is] collected, and not just those made by people whom the government suspects of terrorist activity” is because if the FBI or other investigators are going to go back and look for patterns of activity after the fact, they’ll need an historical set of data. That’s something that ought to be debated, and if I get a vote, it will be that the threat of terrorism is so low that so vast a collection of data isn’t needed, especially when measured against the civil liberties lost and the potential for government abuse. That’s a debate worth having.
In answer to another of the Times’s questions—namely “Can it be used for routine police investigations”—the answer is no, and in this case we have some proof.
Consider this: if the NSA has metadata stored on every phone call made in the United States from every conceivable landline and cell phone, why would the FBI and the Justice Department need to acquire that very same data on a lot of Associated Press reporters in a leak investigation? Why not trundle over to the NSA and look it up? And in this case, especially, since it involved a leak involving an incident of terrorism and counterterrorism? The reason they didn’t, and instead sought the intrusive method that they actually used, is because this was a criminal case—a leak investigation—and not a case that actually involved terrorism. That, alone, should tell us that the NSA’s storehouse of phone metadata isn’t likely being used improperly.
On the other hand, in its investigation of the Boston Marathon bombers, the FBI and the CIA can indeed use the metadata to search the patterns of the bombers’ phone calls.
Less clear is the case of the would-be subway bomber, Najibullah Zazi, who the administration says was netted in part because of the NSA’s ability to track and monitor e-mail communications. (That’s the subject of another of Snowden’s blockbuster leaks, involving the PRISM program that gives the government entry in social networking and e-mail servers in cases involving foreign targets.) The administration says that Zazi was caught in the NSA’s net, but others say that he could easily have been tracked using the more standard intelligence and law enforcement tools that allow investigators to conduct wiretaps and electronic intercepts. (Dianne Feinstein, on the other hand, reportedly said that Zazi was caught using the NSA phone metadata, which definitely isn’t true.)
As I noted at the outset, comparing President Obama to President George W. Bush—and glibly popularizing phrases such as “George W. Obama”—is just plain silly. It’s comparing, well, apples and invasions. President Bush opted to use the military to invade entire nations in search of terrorists, some of whom didn’t even exist. More rational people, including Obama (and myself) have long argued that battling terrorism primarily ought to be the job of intelligence and law enforcement agencies. (Note to Obama: that doesn’t mean that intelligence agencies ought to use drones!) But if counterterrorism is the province of those agencies, not the military, then we need to discuss, as a nation, what powers those agencies ought to have—and what they shouldn’t.
Lee Fang writes about how intelligence contractors have already abused their power.