M.D. Harmon: Liberty or Security?



“I’m a U.K. citizen hoping soon to become a U.S. citizen, a lifelong admirer of the American project and its founding principles. But after living here for eight years, I’ve started to wince when I hear the expression, ‘It’s a free country.’”

— Clive Crook, Bloomberg News columnist, June 11

The news about the National Security Agency monitoring the sources, recipients and timing of U.S. cell phone calls by the millions and gathering details of a “gigantic” amount of other communications, including email and live communications, as well as Web searches and credit card transactions, was revealed earlier this month by the left-wing British newspaper The Guardian.

But it has resonated across the U.S. political spectrum, from libertarians to liberals, with reactions crossing conventional political boundaries.

The potential scope of the issue, revealed by former NSA contract employee Edward Snowden, is huge.

The Washington Post said that the “data-mining” program called PRISM, which goes far beyond the NSA’s “metadata” compilations, “facilitates extensive, in-depth surveillance on live communications and stored information. The law allows for the targeting of any customers of participating firms who live outside the U.S., or those Americans whose communications include people outside the U.S.”

And “it also opens the possibility of communications made entirely within the U.S. being collected without warrants.”

That such a capability is being exercised by an administration under the control of a president whose political ideals were formed by left-wing theorists should raise the hackles of everyone concerned about government overreach.

And yet, the NSA’s activities have been defended vigorously by some on the right, including those with the strongest historical experience in dealing with the kinds of threats posed by Islamic jihadist terrorists.

Associated Press reporter Charles Babington reported June 12, in an article headlined, “NSA debate pits far left, right against the middle,” that “A number of Democratic civil liberties specialists, along with libertarian-leaning Republicans, say the government actions are too broad and don’t adequately protect citizens’ privacy.”

However, that appears to be a minority point of view. The AP continues, “But this unlikely coalition might have trouble doing anything more than spicing up the national debate. Solid majorities of Americans and their elected representatives appear to support the chief elements of the government’s secret data-gathering, and even some of Congress’ most outspoken, pro-limited government tea partyers (sic) are wading cautiously into the discussions.”

The AP story citied a CBS News poll conducted June 9-10 showing “that while most (respondents) approve of government collection of phone records of Americans suspected of terrorist activity and Internet activities of foreigners, a majority disapproved of federal agencies collecting the phone records of ordinary Americans.”

One NSA defender is Andrew McCarthy, a former federal prosecutor who conducted the case against the 1993 World Trade Center bombers. He contends that the collection of data on large numbers of calls is necessary to find the patterns and outlines of contacts that will reveal the activities of specific terrorism suspects.

He wrote on National Review Online June 11 that “the ongoing phone-record collection is the lawful, statutory retention component of a program (the Foreign Intelligence Surveillance Act of 1978, amended many times after 9/11) with extensive civil-liberties protections. Significantly, these protections prohibit the government from inspecting the retained records without judicial approval based on a demonstration of reasonable suspicion of terrorist activity.”

But, the AP reported, Sen. Rand Paul, R-Ky., told “Fox News Sunday” this week that he would ask “all the Internet providers and all the phone companies” and their customers to join a class-action lawsuit against surveillance techniques that he called “an extraordinary invasion of privacy.”

“Get a warrant and go after a terrorist, or a murderer or a rapist,” Paul said. “But don’t troll through a billion phone records every day. That is unconstitutional.”

Not so, says McCarthy, who says that warrants are sought when actual conversations are tapped. But the details of callers’ and recipients’ IDs and other information about the call are the property of the phone companies that transmit them, not the people who make them. Thus, no constitutional issues are involved, in his opinion.

Still, handling those warrants, which are in the purview of a secret “FISA court” that oversees federal intelligence surveillance operations, “is widely regarded by security-law experts as a rubber stamp, said Clive Crook, the Bloomberg News writer quoted at the beginning of this column.

“In 2011,” he wrote, “(the FISA court) approved 1,674 or the 1,676 electronic surveillance applications it received (the other two were withdrawn).”

Indeed, this procedure is grounded in law, and its nature has been public information for years. The AP quoted House Speaker John Boehner, R-Ohio, who said on ABC’s Good Morning America this week, “I’ve been briefed on all these programs. There are clear safeguards. There’s no American who’s going to be snooped on, in any way, unless they’re in contact with some terrorists somewhere around the world.”

However, what’s new to informed Americans is the incredible scope of the project, which is nearly beyond belief — and it is not reassuring to be told that NSA is now building a data recovery center in Utah that will have the capability of recovering every bit and byte of every communication made worldwide over a period of decades.

Even if current laws are adequate to protect the privacy interests of Americans under the Fourth Amendment, what will happen under an administration that doesn’t respect the law and is able to use the security apparatus of the government, including FISA and the Patriot Act, to conceal its activities long enough to do real, lasting damage to American liberties?

Indeed, there are those who point to what they (with considerable justification) as lawlessness and secrecy on the part of the Department of Justice, the Department of Homeland Security and the Internal Revenue Service since the election of Barack Obama to raise significant concerns about the state of our liberties already.

Is there a way to meld Americans’ need to halt terrorist attacks with their rights to privacy?

At the liberal online magazine Slate, William Saletan, as quoted by Ron Radosh of the conservative site PJ Media, takes “an in-between position. ‘Big Brother isn’t watching you,’ Saletan writes, ‘but he does want your records in the database so that if any number you called later surfaces in a plot, he can look back through history, spot the connection, and check you out.’

“Yet,” Radosh says, “Saletan worries that the checks other people cite, such as the FISA court, do not count for much. After all, he notes, the court always approves a government request, and does not in reality function as any kind of check on governmental power. So he suggests realistic, sensible restrictions that would prevent abuse and yet allow the NSA programs to continue. (Thus), Saletan concludes, ‘if we can’t trust the government to manage surveillance data through publicly understood procedures that inhibit abuse, we won’t let it have the data to begin with.’”

But as an editorial in Investor’s Business Daily put it June 10, these programs failed to stop the Boston Marathon bombers, who had traveled “to the terrorist haven they called home,” and also did not stop Army Maj. Nidal Hasan, who was known to have communicated with terrorist apologists abroad before he killed soldiers and civilians at Ft. Hood.

As IBD noted, “The Constitution was written to limit the powers of government, not the rights of the people.”

Finally, take note of the view of David French, who wrote on National Review Online June 11 that, “President Obama’s war strategy requires a security state — and he knows it.”

Briefly, French’s point is that Obama is winding down America’s active military measures against terrorism abroad, bowing to both political pressures (they are becoming unpopular among most Americans) and ideological concerns (his progressive base hates nearly all U.S. military action).

Thus, the only option he has left to prevent domestic terrorist attacks is to strengthen and expand the measures provided by the vast security structure already in place. That is why he has left Bush-era measures in place, despite campaigning against them, and why he will seek to expand them when he can.

And the idea that Obama would restrict that apparatus solely to controlling terrorist activities is not one any American worried about his or her liberties could consider credible — especially given the nature of the ideology that has formed him and those he trusts to govern us, and their extensive track record of partisan actions against conservative targets.

So, what must freedom-loving Americans who also desire protection from jihadists’ lethal rage do in such circumstances?

Ben Franklin was right. If we give up essential freedoms to purchase illusive safety, we will find we lost what we were trying to protect even as we attempted to safeguard it.

We should be able to maintain necessary defenses against terrorism, as long as they can be shown to be both effective and constitutional, but we have to replace the hard-core statists now running things with new leaders who value our freedoms as much as we do.

M.D. Harmon, a retired journalist and military officer, is a free-lance writer and speaker. He can be contacted at: mdharmoncol@yahoo.com


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