The Reaction to the NSA Database

The reaction to the revelation that the NSA has been compiling a database of phone calls has been, to my mind, disappointing. Over at Real Clear Politics, a website which I normally like, has been exceptionally bad on this issue. John McIntyre has a post castigating the "bloggers and pundits out there who are hyperventilating over the latest revelation that our security agencies are actually trying to do their job." He draws a comparison between the reaction to the NSA program to that to the USA PATRIOT Act, saying "show me the real alive Jane and Joe Americans who have had their liberties violated in some grotesque manner by the Patriot Act."

This is a completely disingenuous argument. The Patriot Act, whether or not you like it, was passed by Congress. It is law. About that, there is no debate. It was, more or less, debated, critiqued, and subject to scrutiny, consideration, checks, and renewal. The NSA program is not subject to any of this. As I have made clear, I believe that unwarranted, domestic surveillance conducted outside of wartime (and as I have also made clear, we are not currently in a legal state of war) is illegal. I agree with John that the Patriot Act has not produced any serious violations of civil rights to date; I also believe that the NSA surveillance and database operations probably have not either. And I do not believe that the NSA programs are nefarious attempts by sinister politicians to advance their own personal agendas and consolidate power. But, the NSA programs are domestic and aimed at US citizens, and in that role, they must be held to higher standards than foreign intelligence operations. And the NSA programs are illegal.

Over at Power Line, John Hinderaker has a post entitled "NSA Accused of Protecting US From Terrorists." He argues that the database is a "'data mining project that does not involve listening in on conversations, but merely identifies phone numbers involved in possible terrorist communications," and blasts Qwest for refusing to cooperate with the NSA, stating that "presumably Qwest has now become the terrorists' telecom company of choice." First, the database does not just identify numbers involved in possible terrorist communications; it gathers all available phone records and "mines" them to identify patterns. Thus, records of phone calls, regardless of whether they have anything to do with terrorist activity, are collected. Under Section 22 of the Communications Act, phone companies are forbidden from releasing information about their customers' calling patterns.

If this database is so important to the NSA and the fight against terrorism, then why didn't President Bush go before Congress, or the FISA courts to get warrants? There certainly is no argument about the timely nature of the information, as there was with actually listening in to phone calls. If the NSA just needs the information, whether it gets it today or tomorrow shouldn't make such a difference as to justify breaking the law.

Also, when legitimate dissent and concern gets classified as anti-patriotic or soft on national security, as with Hinderaker's title "NSA Accused of Protecting US From Terrorists," something is dreadfully wrong. The attempt to squash analysis and thoughtful debate with jingoistic and simplistic polemics is exactly the reason that these issues need to be considered openly.

The real question of how to analyze the actions of the NSA depends on two considerations: the role of procedural justice and the nature of the threat posed to the United States by international terrorist organizations. I've blogged about the former many times here; suffice it to say that when you're dealing with domestic actions, procedural rules and laws are paramount. We let known criminals escape punishment if their procedural rights are violated. But, that is because any one "regular" criminal poses less of a threat to the fabric of society than does the undermining of the laws, rights, and civil liberties that define this nation.

When those laws, rights, and civil liberties are fundamentally threatened, however, it is legitimate, and perhaps necessary, to restrict civil liberties in order to preserve them in the long run. The question becomes: Is terrorism such a threat? Does it so fundamentally and systematically threaten this country and its freedoms that we need to violate our liberties in order to save them? I believe the answer is no.

There are two problems. First, the war on terror going to be, at best long, at worst never-ending. If we cede liberties, when will we get them back? What constitutes victory? Lacking metrics, we should not give such powers to the president without oversight from Congress, which has not authorized the president to take such actions, has not declared a state of war, and has not approved of the actions of the NSA.

Second, while the effect of a terrorist attack with WMDs would be, as McIntyre notes in his article, devastating, there are lots of possibilities that could cause huge casualties and lots of damage. So just considering the potential outcome does not necessarily justify any particular action; the likelihood of such an outcome must be considered. This is, of course, difficult to quantify. The benefits gained must be weighed against the costs incurred. 9/11, as terrible as it was, took fewer American lives in 2001 than car accidents (42,900), accidental poisonings (14,500), falls (14,200), or suffocation (4,200) [data from the National Safety Council]. In 2001, 1,775 residents of North Carolina died from the flu. On average, 5,000 Americans die every year from food-borne illnesses like salmonella or botulism. None of this is to minimize those deaths, or those taken on 9/11. But the threat of terrorism needs to be understood and not used as a bludgeon. It is infinitely more complicated than pointing to the dead of 9/11 and saying "we must do anything in our power to prevent this, or something worse, from happening again." I see no convincing reasons why the Bush Administration and the NSA need to pursue extra-legal activities to protect this nation.

In the words of Supreme Court Justice Robert Jackson: "the tendency is strong to emphasize transient results upon policies and lose sight of enduring consequences upon the balanced structure of our Republic." Amen.