Last March, during a rare public hearing, Senator Ron Wyden, Democrat of Oregon, asked James Clapper, the Director of National Intelligence, “Does the NSA collect any type of data on millions or hundreds of millions of Americans?” Clapper replied, No, sir…not wittingly.”
As we now know, Clapper was lying. (Lying to Congress is a felony, though the statute has rarely been enforced.) Wyden, who is a member of the Senate Intelligence Committee and had thus been briefed on the program, knew that Clapper was lying—but he said nothing in public, lest he violate his own security clearances. It’s hard to have effective oversight if the officials being monitored are so indifferent to the truth.
It’s worth emphasizing: The NSA is not Stasi
In other words, there is a clear tension between the 4th Amendment—a crucial pillar in the foundation of not only American law but American life—and the Patriot Act. Some legal scholars believe that certain parts of the Patriot Act are unconstitutional. But there is no way to test this claim because the FISA Court’s decisions, which lay out the legal reasoning for allowing a warrant, are secret; the Patriot Act itself permits the secrecy; and the U.S. Supreme Court, throughout all of American history, has almost never challenged a president’s assertion of “national-security interests.”
But let’s back up. What do these surveillance programs entail—and not entail? First, it’s worth emphasizing, the NSA is not Stasi. Its employees do not listen in on phone conversations or read emails. Nor is it their mandate to track down critics of the American government (whereas Stasi’s sole aim was to monitor domestic critics of the Communist Party). Nor is modern-day America like Orwell’s 1984. If it were, the police would be bashing down my door as I write this, and the world would know nothing of the articles in the Washington Post or the Guardian (because they would never have been published).
An almost irresistible temptation
What the surveillance system does (and the initial steps are done entirely by computers) is to scoop up lots of digital data, then mine the data for significant patterns. For instance, let’s say a particular phone calls a phone in Pakistan, then calls another phone in Sudan or Somalia; let’s also say the phone’s owner also downloads a bomb-making manual or a jihadist’s inciteful lecture on his laptop. This pattern of communication would set off an alarm, prompting an analyst to seek permission to look into the contents of conversations and email.
A case could be made that this is legitimate intelligence activity. More to the point, if intelligence officers—or Presidents—were told that they have the ability to do this, and that it might prevent a terrorist attack, the temptation to say “Go ahead” would be almost irresistible. If there were a terrorist attack, and if it were revealed that the President had rejected this program, had not utilized the technology that was in his grasp to protect the lives of Americans, he would be harshly criticized, accused of having blood on his hands; probably he would be impeached.
A system of controls that Stalin’s commisars would have envied
Since September 11, most Americans have assumed that the intelligence agencies have something like this system in place. The growth of Facebook and the prevalence of directed advertising on the Internet (if you search for information on cars, you’ll soon be seeing a lot of car ads on your computer screen) have lowered the value, and almost eliminated the expectation, of privacy.