Monday, May 15, 2006

Spy vs. Spy

After a rather lengthy vacation from the public spotlight, our nation's intelligence community has been the star of the show for the last couple years, thanks to stories like the New York Times' expose on the National Security Agency's warrantless electronic surveillance program President Bush instigated after 9/11, and, more lately, because of the newly-discovered "data-mining" program whereby the NSA collects telephone records of millions of Americans with the cooperation of the major telecom networks.

My initial reaction to the entire works was negative. The whole idea of "warrantless wiretapping" seemed to me to fly in the face of the Fourth Amendment's prohibition against unlawful search and seizure, since American citizens are constitutionally guaranteed privacy except when law enforcement (or another government agency) has "probable cause" and obtains a warrant.

Using the ongoing "War on Terror" as grounds for disallowing congress from "hampering intelligence collection," the NSA's domestic spying program no longer requires a warrant from a FISA judge -- since, many will argue, obtaining a warrant takes too long in today's age of lightning-fast communications.

This also, at first glance, seems to violate the constitutional separation of powers America was founded upon. If the NSA, an arm of the Defense Department, is allowed to determine on its own who is and who isn't worthy of surveillance, then we've lost the judicial oversight that was put into place to protect citizens' right to privacy.

The more recent data-mining operation, whereby the phone records of millions of Americans are monitored electronically to purportedly search for patterns in phone usage, seems to invade privacy less. But does the fact that only phone numbers and the calls associated with them -- not the content of calls, nor the names attached to the numbers, necessarily -- mean that the program doesn't invade privacy at all?

My dad and I frequently butt heads about this on the phone. We'll catch up on the latest events, but we'll wind up talking national policy and civil rights almost invariably. It's great to talk with him, especially since we both hold such opposing viewpoints on the issue.

If I understand him correctly, he says he believes that regular Americans have nothing to worry about from the surveillance program, and that if the government decides to listen in on his phone call (after a computer at NSA headquarters raises a red flag after "hearing" the word jihad, for example), then such is the price of safety, and it doesn't bother him at all.

Me, I'm not so sure I'm comfortable with the idea that any communication of mine is potentially subject to monitoring. It's not that I'm worried about being prosecuted for having been caught, but more the fact that the decision is left in the hands of a government agency whose mission is basically the equivalent of a national-level District Attorney: the NSA has no vested interest in presuming anyone to be innocent.

But maybe Nineteen-Eighty-Four is too fresh in my mind. It seems, after doing a little reading, that the NSA's warrantless surveillance program is not automatically directed at domestic communication; rather, the system searches international calls and calls from known al-Qaeda sympathizers, then determines from the content of those calls whose domestic communication should be monitored. This, however, goes on without the need for a FISA judge to issue any warrants.

So where do you strike the balance? Does the lack of judicial oversight of the program make it sufficiently unconstitutional to justify resistance? Or do the threat of terrorism and the ongoing war provide sufficient grounds to cooperate?

I initially intended to use a Benjamin Franklin quote -- "Those that would sacrifice essential liberty to purchase temporary safety deserve neither liberty nor safety" -- but as it turns out, this quote is very likely misattributed. Such are the ways of the Internet.


P.S.: Dad, please feel free to chime in here and straighten me out if I'm misrepresented your stance on this thing. I know you drop by here every so often.