We have a security problem. Virtually every terrorism analyst agrees that terrorist attacks, both foreign and domestic, will continue. Inevitably, some of the attacks will succeed. Most analysts also believe that it is only a matter of time before some terrorist group gains access to weapons of mass destruction.
Political leaders know this too, and they know that the recriminations will be enormous, particularly if a Democrat is in power; Republicans have generated more noise over the Benghazi witch hunt than they did about 9/11, when they essentially gave Bush and Cheney a “Mulligan.”
That helps explain the four NSA programs that were recently revealed. No political leader, much less a Democrat, can appear to leave an important tool unused; this tips the balance toward more intelligence collection and less freedom. (Disclosure: I had access to NSA data for 25 years and once served as a backup linguist/intercept operator for NSA overseas.)
Full-time surveillance has become a fact of life for Americans. Security technologist Bruce Schneier wrote recently that “The Internet is a surveillance state … we're being tracked all the time.” Austrian law student Max Shrems found out first hand: in response to a 2011 complaint he filed with the European regulator, he received a computer disc with 1,222 pages of information that Facebook had collected on him, all for sale to any bidder.
The National Security Agency has been tracking us “all the time,” as well. The Washington Post reports that NSA collects trillions of metadata records — the times, places, devices and participants in electronic communication, but not their contents — for storage and analysis. A typical smartphone broadcasts nearly 100 pieces of technical data through calls, texts and other activities, according to University of Ontario researcher Tracy Ann Kosa.
The Wall Street Journal claims that this metadata provides one of the most powerful investigative tools ever devised. It can electronically map a person's movements, contacts, and the contacts' contacts, and a suspect's location down to the specific floor in a building.
The NSA program has reportedly prevented terrorist attacks in 20 countries and helped solve crimes. Metadata was apparently key in uncovering the relationship between General David Petraeus and his biographer, Paula Broadwell.
While more intelligence collection may keep us safer, information can also enable abuse of power, as when J. Edgar Hoover used the FBI to collect dirt on Martin Luther King.
The principal abuses after 9/11, however, involved infringements of the Constitution rather than misuse of intelligence: the Bush administration denied habeas corpus and other defendants’ rights; established an extensive network of secret prisons where, according to recent revelations, terrorism suspects were routinely and systematically tortured; it conducted warrantless searches and wiretaps; intercepted e-mails and phone calls without warrants; instituted secret no-fly lists; conducted pre-emptive arrests of peaceful protesters, and carried out surveillance of at least 150 peaceful domestic organizations, including Quakers, Greenpeace and Catholic Workers (see the April 2011 My View: The Civil Liberties Time Bomb).
The Bush administration claimed that the president’s god-like commander-in-chief authority conferred unlimited power, included its use of 1,000 “signing statements” to alter legislation Bush disliked.
The exponents of an all-powerful presidency have mostly disappeared since Obama took office. But not completely. Obama has claimed, under his "Kill List" policy, the right to kill any U.S. citizen or “terrorist” that he believes to be a threat to the United States, including a 16-year old boy. Congress subsequently legalized many of Bush’s practices, but it never approved execution of Americans without a trial.
The Fourth Amendment prohibition against unreasonable search and seizure was formulated to outlaw fishing expeditions in the name of law enforcement. The NSA data mining programs, combined with other post-9/11 measures, are characteristic attributes of a national security state, the kind that constantly “discovers” enemies requiring another war and more resources. Sound familiar? Congress’s blank-check Authorization for Use of Military Force (AUMF) and the subsequent decision to legalize domestic intelligence gathering by the CIA and the military are more of the same.
At the same time, because of the threat of WMD, we must do everything reasonably possible to prevent attack. That dictates caution in how we limit our ability to collect information. We must also exercise caution by establishing strong oversight mechanisms to minimize further encroachment on our civil liberties. The AP has reported that the Obama administration made (unspecified) changes in 2009 to limit the scope of the programs and strengthen oversight. This is a case where constant vigilance is the price of liberty.
Tom Maertens describes himself as a political centrist who has worked in national security for both political parties in the White House and in the U.S. Senate. He is part of a Free Press team of readers from all political viewpoints asked to write columns.