One of the arguments being put forth by people from all over the left-right spectrum regarding the NSA’s broad collection of telephone data and “metadata” is that it’s essential to the War on Terror and to the security of the American people. We are told that these efforts and methods are useful, fruitful and that they have produced results. Before we consider the veracity of the latter statement, lets consider the “ends justify the means” justification that is the root of this argument.
The Fourth Amendment uses two adjectives regarding searches and warrants: “unreasonable” and “probable.” It is an unavoidable reality that there has to be judgment made in authorizing searches, and that’s the point of having an independent judiciary. The language of the 4th, however, doesn’t instruct judges to consider the utility of the information being sought when searching. The standards of reasonableness and probable cause speak to the investigator’s level of confidence that there is malfeasance to be uncovered, not to the quality of payoff that the search will produce.
Imagine if police went door-to-door in a random neighborhood, kicking their way in to houses, no warrant, no probable cause. Now, imagine that they found a huge stash of heroin, hundreds of automatic weapons, and millions of dollars in cash in one of those houses, having no prior clue whatsoever. Should the size of the find be a legitimate argument in court as a justification for violating the homeowner’s 4th Amendment rights? What of the other 50, or 100, or 1000 homes that were forcibly searched without cause or warrant? Should the size of the find in one home override the complaints (and lawsuits) of the other homeowners and residents?
Suppose doors weren’t kicked in. Suppose the police used master keys or lock picks to sneak in and snoop around. And suppose the police are from out of town and don’t know any of the people whose houses they are searching. The residents won’t know or even notice that their houses have been searched. No harm, no foul, right? Especially if there’s a big payoff every so often? And if people aren’t doing anything wrong, they shouldn’t complain or even mind, right?
Despite protestations to the contrary, this is in essence what NSA snooping is – a surreptitious search of our electronic communications (including telephone conversations). It is offensive to the very nature of the job government has been tasked with i.e. to ensure and protect our liberties. President Obama has, as have others before him, told us that there must be a tradeoff between liberty and security. This statement presumes a “free hand,” no structure, no prior restraint, no set of rules governing the government’s activity and behavior. Yet that presumption is patently false – we do have a set of rules in place, and all politicians are charged with following those rules and honoring their intent. Instead of their making a tradeoff between liberty and security, it is their job to maximize security while protecting our liberties and honoring and prioritizing the rules that establish those protections. In other words, they’re not to make a tradeoff, but rather to work within confines and limits. And, if that makes their job harder, well, that’s how it’s supposed to be.
Some may argue that national security of this sort is a different animal than the more intrusive searches that I describe above. Yet such don’t happen in a vacuum. Attitudes permeate society, and if it’s OK to do broad-brush searches of one sort, it’ll be OK to do them in other ways. After the Boston marathon bombing, we witnessed news coverage of police going door-to-door and rousting people out of their homes, without warrant. New York City is in the midst of a big argument about the constitutionality of stop-and-frisk. Both have been and are justified on the basis of utility, both were/are violations of the 4th Amendment. More broadly, every time we travel by air, we are subject to searches of our persons and our effects with next-to-zero probable cause and reasonableness.
Prior to the Revolution, the colonies were subject to “writs of assistance,” also known as general warrants, that authorized agents of the British government to search anyone and any place whenever they wanted. They were mostly but not exclusively used by customs agents to search for contraband and engage in tax collection. They were granted by the King, and were in effect for the lifetime of the King. They were despised by the colonists, and were a primary reason for the drafting and language of the Fourth Amendment.
What the NSA is doing today is little different from the activities of pre-Revolution agents who had these general warrants. Worse, judges are providing cover for intrusions into our liberties with rulings that deny that our electronic communications are protected at all. And, the justifications for these rulings included references to and deference to the utility of such searches in the War on Terror.
Rights get eroded a nibble at a time, usually under cover of “reasonableness” or “safety” or “security.” Once gone, they’re VERY difficult to get back, especially since the zeitgeist incorporates the erosions and people grow accustomed to the new normal. Politicians “sell” these erosions in whatever manner they can, and it’s certainly not above them to try and turn the tables on those who object by trotting out successes and implying or directly stating that opposing those erosions is no different from abetting criminals or terrorists. Such a tactic is reprehensible, but it can be very effective. Response to such a dastardly accusation needs to be quick and vehement, possibly in the form of “if you were competent, you wouldn’t need to violate our rights to keep us safe.” Not necessarily true, but as a response to a false accusation it seems commensurate.
The frog in the pot metaphor, ubiquitous and over-used though it may be, is apt here. As we grow accustomed to more and more invasions of our privacy in the name of security, the intrusions will become more and more overt. They will be often justified with utility and with declarations of success, both vague (we haven’t been attacked in 11 years, our intrusions into your privacy are obviously working) and specific (we picked up a conversation that led us to the targeting of an Al Qaeda operative). Opposition to the invasions will be conflated with support for the terrorists or as proof of fringe-hysteria, both intended to marginalize those who oppose and wedge them away from rank-and-file citizens who don’t pay much attention. Yet it is those who oppose, no matter how vilified they are, who represent the true values of the nation. So, before you shrug off the NSA’s “metadata” gathering, take a moment and contemplate it within the context of liberty and the role of government in the lives of the citizens of a free nation.
Eternal vigilance is the price of liberty. — Wendell Phillips
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