National dialogue regarding the N.S.A. scandals has raised two important issues concerning the human condition. Why do people fear terrorists? Why are people not afraid of the government?
The justification put forward by political proponents of P.R.I.S.M. and the N.S.A. surveillance projects rests on the idea that these programs are an indispensable tool in the fight to save your life from heinous acts of terrorism. In addition to the cliché ‘to fear the terrorist is to let the terrorist win’, it is worth pointing out that to fear the terrorist is to let irrationality win. Jim Manzi, writing for the National Review states: ‘We have suffered several thousand casualties from 9/11 through today. Suppose we had a 9/11-level attack with 3,000 casualties per year every year. Each person reading this would face a probability of death from this source of about 0.001% each year.” This minuscule number is, itself, highly exaggerated: we have not had a 9/11 scale attack since. The actual statistics make that pathetically small number look large. Individuals residing in the United States are more than twice as likely to be killed by domestic appliances than to be killed by acts of terrorism: 0.00000066% and 0.00000029% chance respectively per annum on average since 2001.
These statistics raise an interesting thought experiment for any proponent of mass surveillance on the grounds of insuring safety at the expense of privacy. If it was leaked that the government had bugged every room in every house in the country and then, post-revelation, justified this action through stating it was done to benevolently monitor citizens in order to possess the capability of dispatching rapid response emergence care in the event of domestic appliance assault, would that seem reasonable?
Democracy may be flawed, but I believe it is the best system known. Thus, if large segments of the population believe either of the previously mentioned threats are of such significant concern that they require a suspension of previously-held privileges, their grievances must be considered. But there are processes in place through which this consideration is to be undertaken. Even if you feel the N.S.A. programs should exist, the means by which they were implemented should still illicit outrage and concern.
The administration, many liberal and conservative commentators and much of Congress, including the leaders of the Senate Intelligence Committee, Dianne Feinstein (D-California) and Saxby Chambliss (R-Georgia), have called the surveillance programs legal. This view is wrong.
The Tenth Amendment deems America to be a country of enumerated powers and restrictions, rather than solely restrictions. Meaning, those powers that are not restricted are not held de facto: it is only through enumeration in legal codes that the government obtains authority, and only those specific authorities. There is no explicit statute authorizing mass government surveillance.
The legal justification cited for the N.S.A. surveillance program is Section 215 of the Patriot Act. This provision allows the F.B.I. to order any person or entity to turn over “any tangible things,” so long as the F.B.I. “specif[ies]” that the order is “for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.” This provision is itself a disturbing violation of the Fourth Amendment’s demand for probable cause, but still does not justify the extent or scope to which the N.S.A. is gathering information.
Quoting from Jennifer Granick’s and Christopher Sprigman’s New York Times piece: ‘Even in the fearful time when the Patriot Act was enacted, in October 2001, lawmakers never contemplated that Section 215 would be used for phone metadata, or for mass surveillance of any sort. Representative James Sensenbrenner Jr., a Wisconsin Republican and one of the architects of the Patriot Act, and a man not known as a civil libertarian, has said that “Congress intended to allow the intelligence communities to access targeted information for specific investigations.” The N.S.A.’s demand for information about every American’s phone calls isn’t “targeted” at all — it’s a dragnet. “How can every call that every American makes or receives be relevant to a specific investigation?”
This objection has been technically averted through claiming that Section 215 justifies the universal collection of data under the guise that it might be relevant to an investigation at a later date. But this is both a shockingly poor argument with seemingly no justification in the language of the Patriot Act, as well as a tacit admission that the data is not being collected for a targeted, tangible or relevant reason.
The P.R.I.S.M. program similarly outstrips the already broad surveillance authority provided to the government by the legal codes used to justify its existence. This justification sources from the F.I.S.A. Amendments Act of 2008, specifically section 1881a. But this statute solely allows the government remit to collect data on the communications of those residing outside the United States. This is a provision the Administration nominally respects, stating the programs are required to determine a 51% probability of ‘foreignness’, simply ignoring that, by their own statistical assessment, 49% of the data collected is illegally possessed. This technicality is sidestepped through the torturous semantic limbo of labeling surveillance information ‘acquired’ only when it is retrieved from the gargantuan database, not when it is initially intercepted and stored for potential future use.
At best the government is thoroughly disregarding the spirit of the law, but their grounding in the letter of the law seems tenuous. Regardless, it is disheartening for anyone attached to civil liberties. The government has not even been apologetic for the secrecy of their actions, but instead has the hubris to both declare these revelations irrelevant, obvious and meaningless while simultaneously calling for the arrest and detention of Edward Snowden because of the drastic blow his ‘illegal’ actions have caused to nation security.
The oddity and seemingly schizophrenic nature of the government reaction to the surveillance revelations is further borne out in comparing the apparent apathy to the more recent leaks concerning the interception of Al-Qaeda communications: information that lead to the temporary closure of twenty-two U.S. embassies. Snowden faces criminal charges mainly under the rationale that his leaks caused undue damage to national security, with specific reference given to informing Al-Qaeda of U.S. surveillance practices. Despite this more recent communiqué falling more directly into this category, it has elicited no administration outrage. The fact that it, despite having more direct national security ramifications, has a polar opposite implication regarding government embarrassment, calls into question government priorities and the motivations for the Snowden manhunt.
Regardless of government hypocrisy, it is institutional deterioration that should garner the most concern. If our laws and institutions can be subverted beyond their initial intentions without national dialogue, but rather through linguistic contortions, what is their point? They cease to fulfil their functions, and rather transform into hoops that must be jumped to implement the whims of those in power. The government has broken the social contract. We are supposed to live in a society of laws and institutions, not individuals. This is the cornerstone of our society: we know (as laid out in laws) the powers and options of recourse available to the government. These limitations are what justify handing to the government the monopoly on the legitimate use of force, including an arsenal, it should be remembered, that can destroy the entire planet several times over. This is more power than any of our enemies could dream of possessing. If these powers are held not by legal codes and institutions, but rather by the arbitrary whims of individuals, history and commonsense show this should be cause for great concern.