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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, December 27, 2005

What the NSA scandal is really about

Bush defenders are now at the point where, to defend the President, they are literally advocating that preserving privacy against the Government is unnecessary, worthless and even dangerous -- illustrating, yet again, that there are few, if any, limits which they are willing to place on the Administration’s power in the name of the war on terrorism. It is this rapidly evolving danger which the NSA eavesdropping scandal, at its core, is about.

Along those lines, Scott Lemieux yesterday asks a question about the theories of Bush defenders with respect to violations of the 22nd Amendment (which limits a President to two terms in office) -- a question which is similar to the one I asked several days ago with regard to other assorted potential Governmental acts undertaken in the name of the war on terrorism (in a post to which many Bush defenders purported to respond, though none with an actual answer):

would . . . any of the large number of conservative pundits who have endorsed the Yooian theory that the President's Article II powers trump all other legal limits on the executive's authority where "national security" is involved, have any principled way of not supporting the legality of the President's actions if he decided that the 22nd Amendment was a luxury the country can't afford during the War on Terra?

After all, the Court used a similar logic to permit the President to engage in a clear violation of the 14th Amendment during WWII, and the most popular conservative blogger who writes a significant amount of original content has already written a book defending the decision. And that's the problem with this reasoning: there's no logical end to it. Even if we were to assume for the sake of argument that the President's illegal wiretaps haven't created any substantively major violations of civil liberties, the reasoning being used to pretend that they're legal is incredibly dangerous.

It is worth remembering, as Scott points out, that we don’t actually know who the Administration eavesdropped on as part of this still secret warrantless surveillance program, nor do we know how the information which the Administration acquired has been used. All we know about any of this is what the Administration, through a series of ever-changing, self-justifying excuses, has deigned to tell us. And what it has told us thus far has been glaringly contradictory.

When this warrantless eavesdropping was disclosed, George Bush first assured us that the eavesdropping was directed only to "people with known links to al Qaeda and related terrorist organizations" – an explanation which made absolutely no sense whatsoever, since FISA could have easily accommodated eavesdropping directed at such a targeted, narrow category of communications. It was immediately apparent that this explanation was false, because it simply made no sense as an explanation for why FISA was not complied with. Rather than mollify concerns over this secret and lawless eavesdropping, this insultingly incoherent explanation only inflamed those concerns.

That initial failure led the Administration to thereafter swing to the polar opposite explanation. Rather than the narrow, carefully calibrated eavesdropping which Bush initially claimed they were engaged in, the Administration began claiming, mostly through leaks, that it could not stay within the framework of FISA because eavesdropping was too widespread for FISA to accomomdate. They now claim that the NSA is engaged in a novel form of broad data-mining which involves sifting through everyone’s communications, thereby rendering the notion of FISA warrants -- like Geneva Conventions restrictions, prohibitions on torture, and due process for imprisoned American citizens -- nothing more than a quaint and obsolete remnant to be discarded in the name of our fear of terrorism.

What is so striking about this wildly shifting rationale for the Administration's violations of FISA is that, to Bush defenders, it doesn’t much matter what excuse is offered up. They cling to any rationale offered, and tout it in order to argue that their leader did nothing wrong. What has become readily apparent is that there is a sizable portion of the population – exactly what portion remains to be seen – which not only has no objection to the Administration (at least this Administration) engaging in wholesale invasion of the privacy of American citizens via lawless and oversight-less monitoring of our communications, but actually and affirmatively wants the Administration to do so -- and the more the better.

Thus far, the warrantless eavesdropping debate has proceeded on the assumption that the Bush Administration -- despite its mutually exclusive explanations -– has been candid about its objectives and its actions. The Administration claims that it only eavesdrops on Al Qaeda and then the debate becomes about whether such narrow eavesdropping is justified. Then the Administration changes its story and claims that it was engaged in a unique form of data-mining, and presto, even Administration opponents shift their debate to whether this sort of data-mining justifies the Administration’s violations of FISA. The blithe willingness to assume that there has been no abuse of the Administration’s secret, lawless eavesdropping power -- all because the Administration assures us that there has been no abuse -- is staggering.

But regardless of the ever-shifting rationale used to justify the Administration’s eavesdropping, the broader question is how much privacy Americans are willing – even eager – to cede to the Federal Government in the name of the "war against terror." I would be very interested in seeing polling results – or the responses of Bush-defending bloggers – to these questions:

Would you be in favor of having the Bush Administration order the NSA to monitor all of your telephone conversations, e-mails and computer communications without a warrant or any judicial oversight, as long they committed themselves to using the information only to prevent terrorist acts and to capture terrorists?

Would you be in favor of having the Bush Administration engage in random secret, warrantless searches of all houses and apartments ("sneak and peaks," where the resident is never aware of the searches) in order to find terrorist cells inside the United States?

Would you be in favor of having the Bush Administration place hidden cameras in homes of people it suspects of having some contact with terrorists, either intentionally or innocently, in order to monitor the activities inside those homes, provided it promises to use such monitoring only to combat and prevent terrorism?

As Lemieux points out, there is really no rationale for opposing such measures available to those who are defending the Administration’s secret, sweeping eavesdropping activities. That’s because to endorse the Administration’s warrantless NSA eavesdropping on American citizens is to embrace the notion that concepts of "privacy" against the Government are abstract and worthless when weighed against the need to maximize our security against terrorists. And Congressional or even constitutional limits on the powers of the President have to give way to the imperative of preventing terrorist attacks on the United States.

That is why the support for Bush’s lawless eavesdropping does not wane even as his justifications for it change. The pro-Bush support is not tied to any specific privacy-invading eavesdropping program. Instead, what they support is the disregarding of privacy protections altogether in pursuit of greater security -- on the grounds that privacy, for those who are doing nothing wrong, has no real value.

Lest anyone think that is hyperbole or a distortion of the position of the Bush defenders, many of them have been honest enough to come right out and say that this is what they are advocating. Here is Rush Limbaugh, preaching all-out, anti-privacy arguments to 20 million adoring Americans:

"Liberals and Democrats, Limbaugh claimed, are only opposed to this because they dont want anyone finding out what they’ve been up to. … What have you folks been doing that you so desperately want to keep hidden?"

And here is Federal Court of Appeals Judge Richard Posner, the day after he wrote a truly odious Washington Post Op-Ed recommending that the Government expand its warrantless surveillance to "innocent people" in America as well as suspected terrorists, making a prediction in an online chat regarding the willingness of Americans to cede to the Federal Government all privacy with regard to their communications:

I think it would be highly desirable to explain to the public the tradeoffs between security and privacy. Effective counterterrorism does entail some reduction in privacy. I don't think most people would mind the government's scrutinizing their conversations for information of potential intelligence value if they trusted the government not to misuse the information.


And here is regular Protein Wisdom commenter Smithy, expressing his bewilderment at what all this "privacy" fuss is about:

Frankly, the idea of widespread NSA surveillance is a non-issue. I couldn’t care less if the government listens to my phone conversations. I have nothing to hide. All someone who listened to my phone conversations would learn is that I love America and hate terrorists.

If people have nothing to hide, then they have nothing to fear as far as surveillance goes. It is only those anti-American elements—"peace" activists and the rest of the Michael Moore wing of the Democratic party—that are complaining about this. Perhaps it is because they are afraid that the government will learn what they are really up to.


Smithy’s formulation is a little crude perhaps, but not really different in substance from what most Bush defenders have been arguing in order justify Bush’s conduct. To them, privacy is an abstract, basically empty luxury which we can perhaps discuss in times of peace, but in times of war, it’s not something we can afford to demand. And if you’re not doing anything wrong, why would you care if the Bush Administration listens in on what you’re doing and saying? The Bush Administration should be listening to and watching everything and anyone it can monitor, because the more it knows, the safer it can make us. Who would be against that, unless you have something to hide, or unless you’re not "serious" about stopping terrorism?

Isn’t that ultimately what this debate is really about? There are those who don’t care if they have any privacy from the Government and there are those who do. And there are those who blindly trust the Bush Administration to do anything (torture, eavesdrop without warrants, incarcerate citizens without due process) because they ascribe with an almost religious fervor to the premise that the Administration is on their side -- the side of right and justice, the side of keeping us safe from The Terrorists -- and, thus, the more power the Administration has, the better.

The problem with the NSA eavesdropping debate thus far is that the focus has been on FISA and data mining and "inherent authority" instead of what the debate really is about – whether we are at the point where our fear of terrorism is really so consuming that we are willing to cede our privacy to the Administration and entrust virtually limitless power to it -- including the power to override the law -- in exchange for protection from Terrorists, and based on the Administration's promises that it won’t abuse this power. To see that this is what the debate really is about – and to see that Bush defenders are necessarily advocating notions this radical – all anyone has to do is listen to what they are saying.

There are no powers they are unwilling to have the Bush Administration acquire because they blindly trust the Administration to wield these powers for our own good, and without any real abuse. To them, concerns that the Administration will abuse unchecked powers come from, as Bill Kristol put it yesterday, a "fever swamp" of "paranoia." To be sane, rational and "serious" about terrorism, in their view, one must be eager to give the Bush Administration as much power as it can get, and to cede as much privacy and other anti-government safeguards as possible, on the ground that one can trust the Administration to use these powers for good.

Concerns that the Administration will abuse these powers render you paranoid and unserious. Trying to prevent the Administration from fighting the terrorists by invoking petty legal restrictions on its powers renders you a paranoid subversive. We don’t need privacy against the Government because the Government only wants to protect us, and privacy is only for those who are trying to conceal wrongdoing. Privacy is the friend of the criminal and the terrorist.

That is really what is ultimately at stake with this NSA eavesdropping scandal, whether or not that debate ends up being engaged.

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