The NSA and Unreasonable Searches

Unless you’ve been living under a rock for the last week or so, it’s hard not to have seen or heard some of the breathless reporting on the NSA “whistleblower” Edward Snowden and the tales of the NSA’s alleged spying on Americans. I have lots and lots of thoughts on this still-developing story and I’ve held off writing about it because … well, it’s still developing and because my thoughts are somewhat jumbled and haven’t yet coalesced to form an overarching view of the entire situation. But I decided that I didn’t want to continue my own silence on the matter and that I should, instead, offer the thoughts that I have at present with the important caveat that I reserve the right to change my mind as facts continue to develop or on the basis of arguments that I hear on the subject from others. Open mind, and all that…

So, in no particular order (remember, I said that my thoughts were still jumbled…), here are my current thoughts:

First, I’ve seen a number of people suggest that the NSA’s data collection is in violation of the Fourth Amendment. In all honesty, I’m not so sure, I don’t think that it’s a slam dunk argument one way or another. Let’s recall that the Fourth Amendment protects, not against all searches, but “against unreasonable searches and seizures” (emphasis added). What, in the context of anti-terrorism efforts, constitutes an unreasonable search? I’m not sure that I know the answer to that question. But it does seem important to keep clear the context of the nature of the search that is being discussed, the information being sought, and the use to be made of any information obtained from that search. We’re not talking about searches to see who is illegally downloading movies or growing marijuana in their garage; we’re not talking about finding out who is cheating on their taxes or their spouse; we’re not talking about discovering which investment banks are knowingly selling junk investments or which home builders are capitalizing on undocumented immigrant labor. We’re not even talking about learning who might be planning to rob a bank or use a date rape drug at the next fraternity party. No. We’re talking about information that could help keep Americans from being killed by our enemies. With that in mind, I think what is “reasonable” may be vastly different in one scenario than in another. I’m much more willing to live with an intrusion of privacy or to view a search as reasonable when the purpose is to prevent a terrorist attack rather than to build a standard criminal case to be presented in a court of law. I’m not sure where I draw the line, but the Founding Fathers chose the word “unreasonable” because they recognized that context mattered and that times and situations could evolve. Thus, you may still feel that the NSA’s data mining operations are an unreasonable search but I don’t think that it’s fair to say that it is clearly a violation of the Fourth Amendment.

Next, I suspect that the previous discussion will cause some long-time readers to accuse me of hypocrisy because I’ve repeatedly been critical of the Bush administration’s search and seizure policies. But there is one critical difference that I think properly inoculates me from the charge of hypocrisy: I believe that if you go back through my blog, you’ll see that my criticism was not for the act of acquiring information; rather, my criticism was of warrantless wiretaps. I don’t believe that I leveled criticism for trying to obtain information; I think that my criticism was for the perceived need to do so without a warrant. Now perhaps I’m wrong, but it’s my understanding that the NSA’s searches have been both overseen by Congress and approved by the FISA court (or based on a warrant obtained from the FISA court). Am I uncomfortable with the idea of secret warrants? Of course. But I’m more comfortable with a secret warrant than with no warrant at all; I’m more comfortable with some Congressional oversight than with no oversight at all. It’s not a perfect situation, certainly. I get that. But let’s also think about what a perfect situation might look like and whether it is obtainable and whether it could serve the national security function needed. I just don’t know. Given the stakes, though, my initial reaction would be to err, at least a bit, towards the side of safety. A bit.

I want to respect civil liberties and privacy; I also want to keep my family and my fellow citizens safe. I don’t think that we have to sacrifice all of our civil liberties or privacy to be safe, but I also recognize that safety must come with some cost. Is it a pain in the ass to take off my shoes at the airport? Of course it is. Is that a search or privacy invasion that I’m willing to live with given the scope of the infringement when compared to the harm being guarded against? You betcha! (Oooh, did that sound like Palin? Yikes. Sorry.) Like so many other issues, I think that we need to examine issues like this with a degree of pragmatism rather than hyperventilating about invasions of privacy and illegal searches or claims that without unfettered access to everything the terrorists will win. There are gray and blurry lines in the middle … but there is a middle ground to be found.

Whew. Sorry. Moving on…

I think it’s also worth mentioning that the data being mined by the NSA is metadata and not the actual content of the communications. I’m a lot less concerned with the notion that the NSA knows that a particular cell phone called another particular phone than I am with the NSA knowing what the parties to that phone conversation may have said to one another. Furthermore, if that sort of metadata helps the NSA find patterns that help them find the terrorists, then I’m not sure how worried I should be; again, we’re not talking about that metadata to see who might be calling a criminal defense lawyer, whether two business tycoons are calling one another to plot a monopoly, or whether Congressman X has a mistress that he calls on his way home. Rather, we’re talking about patterns that might allow us to prevent a terrorist attack.

(And please, don’t fall for the red herring argument that, “well, gee, the NSA data mining program didn’t prevent the Boston Marathon bombing. Nobody said that data mining would prevent every attack and, so far, we don’t really know what sorts of attacks it may have prevented. By way of analogy, just because an anti-aircraft missile battery didn’t knock down every incoming hostile missile is not a reason to jettison the entire missile battery, but it may be a reason to try to make it better; just because one gun control law wouldn’t have stopped Sandy Hook doesn’t mean that gun control law might not stop another tragedy.)

Maybe what I’m saying is that we need to think — at least somewhat — differently when we’re talking about information that will eventually be used by prosecutors in a court of law as opposed to information to be used by SEAL Team Six in the tribal regions of Pakistan. Even information used by the FBI to stop a bombing plot should be viewed differently than information that helps find and prosecute a criminal. Or, said another way, Information to put a criminal behind bars is different, I think, than information that will keep Americans alive. Just imagine if metadata had shown the NSA that a series of telephone calls from “burner” (one time) cell phones had been made to pilot training schools in late 2000 or early 2001…

Now I want to change my focus a bit and look at the man responsible for the leak of the information about the NSA’s programs: Edward Snowden. He is being referred to by many people as a “whistleblower”. As far as I can tell, that is a completely inaccurate description. A whistleblower is someone who reveals illegal acts. That is not what Snowden did; rather, he leaked classified information about Congressionally approved and court-sanctioned acts. The difference between revealing an illegal act and a legal act with which you disapprove is enormous and shouldn’t be overlooked, especially in this case. Perhaps look at the issue this way: Let’s say that Snowden (or someone like him), had information about the imminent assault on the compound in Pakistan where Osama Bin Laden was hiding but disapproved of that mission. Would disclosure of that mission information have been “whistleblowing”? Or what if Snowden (or someone like him) learned that the President had authorized a military attack on Iran’s nuclear facility and disclosed that information to a newspaper? Whistleblowing? Or treason? Or is there something in between?

I keep seeing comparisons of Snowden’s conduct to that of Daniel Ellsberg and the disclosure of the Pentagon Papers. Ellsberg has been making the rounds of the news shows to talk about Snowden’s “whistleblowing” activity. But I think that there are several crucial differences to be drawn between Ellsburg’s conduct (and the content of the Pentagon Papers) and that of Snowden and I think those differences are so fundamental that they make the comparison almost wholly inapplicable. First, and most important, the Pentagon Papers disclosure was of information of things that had happened in the past (specifically 1945-1967 when disclosed in 1971). Second, before going to the press with the information, Ellsberg tried to get people in the administration to pay attention to the information. Third, the information that Ellsberg disclosed had, in part, led to the United States’ involvement in and escalation of the Vietnam War and to 58,000 or so American casualties. A better comparison to the Pentagon Papers would be the disclosure of information showing that the Bush administration knew that there were no weapons of mass destruction in Iraq before taking us to war. But a disclosure of information about ongoing activities related not to the escalation of a prior conflict but rather to the attempts to prevent future terrorist attacks is, I think, completely and totally different. For example, what if, rather than disclosing the NSA’s PRISM program, Snowden had disclosed information related to the operations of nuclear, chemical, and biological detectors installed in American ports to detect efforts to smuggle those sorts of agents into the United States?

A few other points worth considering, too. Daniel Ellsberg didn’t make his disclosure to a foreign newspaper as Snowden did. Ellsberg disclosed the Pentagon Papers to a respected journalist rather than to an advocate who clothes himself in a the guise of a journalist and who appears to truly despise many aspects of America including President Obama. Perhaps, most importantly, Ellsberg didn’t run. In fact, he turned himself in to the United States Attorney’s Office in Boston. Snowden, by contrast fled the country with the information before disclosing it. Not only that, he fled, not to an ally of the United States but to China. And then, as if that wasn’t enough, Snowden revealed additional information about American surveillance and espionage activities to both China and Russia. Those are not the acts of a patriot. And even presuming that Snowden’s disclosure of the NSA’s domestic surveillance programs was a form of “whistleblowing”, how can that designation be used when talking about the disclosure of information concerning how the American intelligence community conducts itself with regard to foreign governments?

Finally, Ellsberg had been involved with the Pentagon for years in a senior policy position. By contrast, there is some evidence to suggest that Snowden, who was only with the NSA for a fairly short period (and at a very low level not involved with policy), took his job with the outside contractor after he began communicating with reporters. Did Snowden take the job in order to get access to the classified information that he later stole and leaked? I think that’s worth considering. And if the facts demonstrate that Snowden did take that job under less than honest circumstances, isn’t that, by definition, a form of espionage? And what do we call it when someone commits espionage against the United States? Or, think of it this way: Imagine that everything that happened was exactly the same, but with one difference. Imagine that Edward Snowden was the alias of Pavel Nemekov, Russian spy, who infiltrated the contractor in order to access and then disclose information about the NSA. Or, what if instead of “Edward Snowden” the leaker was an American citizen named “Abdullah Mohammed”. Does that change how you view things?

I also think that it is worth noting a few of the things that Snowden said previously and in Monday’s online Q&A session. For one thing, he previously suggested that as a low-level NSA IT system administrator, he could wiretap anyone, including the President. Do you really believe that? Even for a minute? If Snowden is willing to make that egregious of an exaggeration, then how much should we trust the veracity of anything else that he says?

One of the most troubling statements, however, that Snowden made was this (emphasis added):

I did not reveal any US operations against legitimate military targets. I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous. These nakedly, aggressively criminal acts are wrong no matter the target. Not only that, when NSA makes a technical mistake during an exploitation operation, critical systems crash. Congress hasn’t declared war on the countries — the majority of them are our allies — but without asking for public permission, NSA is running network operations against them that affect millions of innocent people. And for what? So we can have secret access to a computer in a country we’re not even fighting? So we can potentially reveal a potential terrorist with the potential to kill fewer Americans than our own Police? No, the public needs to know the kinds of things a government does in its name, or the “consent of the governed” is meaningless.

Snowden claims that he didn’t reveal operations against “legitimate military targets”. OK. And on what basis does Edward Snowden get to decide what is and is not a legitimate military target? How does a IT system analyst even know what the real targets of the data mining operations are? Then he talks about the NSA’s activities as “nakedly, aggressively criminal acts”. Um, what “crime” would that be? In which of Snowden’s law school classes did they discuss these crimes. Oh, wait. He didn’t go to law school. He decided which acts were criminal. Not Congress, not the FISA court, not the Executive branch, but Edward Snowden. But perhaps the most important line from this whole paragraph is when Snowden seems to scoff at the idea of espionage in the first place. Don’t we want our intelligence services to know what is going on in other countries, whether or not we’re at war with them? Isn’t that what our intelligence community is supposed to do? Or, in Snowden’s world, should our espionage activities be limited to working against North Korea (who, if I’m not mistaken, is the only country with which we technically have ongoing hostilities)?

The last series of points that I wanted to make concern the reporter to whom Snowden disclosed the information: Glenn Greenwald. I hate ad hominem attacks. I really do. That said, though, I think that it is often important to consider the source of certain information in order to determine both whether the information is accurate and whether there is a (possibly hidden) agenda to the way that information is presented, beyond simply revealing “the truth”. With Greenwald, unfortunately, it appears that accuracy and journalistic integrity are less important than his agendas.

I’ve wanted to write about Greenwald for a while now. But, alas, there is so much to say about him, so many unbelievable quotes to recite, so much written about his style of “journalism” and penchant for attacking anyone who challenges him without ever really addressing the issues, that I’ve decided that this post, long enough already, just isn’t the time to really get into a discussion of Greenwald. Let me just note any examination of Greenwald’s writing will reveal that he appears to have a tremendous amount of regard for two other leakers and a great deal of anger at the way that they have been treated: Julian Assange (founder of Wikileaks) and Bradley Manning (the US Army soldier who disclosed massive amounts of secret and confidential information to Wikileaks). The fact that these men are treated as criminals rather than heroes demonstrates, to Greenwald and his followers, that America and its western allies are … well … I’m not really sure. Police states or something. But I suspect that it was Greenwald’s lionization of Assange and Manning that appealed to Snowden.

If you’re interested in learning more about Greenwald before I get around to writing more about him, here are a few critiques worth reading:

The Daily Banter’s Official Helpful Media Guide for Interacting With Glenn Greenwald by Chaz Pazienza at The Daily Banter

On Glenn Greenwald and His Fans by Rick Perlstein in The Nation

Lawfare > Why I Won’t Engage Glenn Greenwald by Benjamin Wittes at lawfareblog

On bullying: Glenn Greenwald and the ‘Obama nun rape’ smear by Joy-Ann Read at Reid Report

Drooling Self-Love & Dime-Store Third Worldism by Unrepentant Jacobin at

A Greenwald primer – in progress (update 6/10/2013)

Glenn Greenwald: Neither a Liberal Nor a Progressive by Dana Houle

The Final Word on Glenn Greenwald by Troubador at Daily Kos

Not an exhaustive compilation, but it’s a good start…

In summary, then, as I said at the outset, I’m still not sure what I think about the NSA’s programs. That may be because I don’t know enough of the details (and, yes, I do recognize the chicken & egg problem there). But I’m pretty sure that Edward Snowden is not a whistleblower as I understand that term. Moreover, it does seem likely that his disclosures were harmful to the United States, especially disclosures that he made to China and Russia regarding American espionage activities.

As I was finishing this post, I recalled that I had written about Julian Assange and the Wikileaks disclosures back in December 2010. I re-read (well, skimmed…) that post again. Two passages from that post stood out and seem to remain applicable to the current controversy and discussion:

I think that most of us would agree that there are some secrets that are OK, and there are lots of things that I think a government probably should keep secret. Certainly, a government should not disclose military battle plans (and probably not contingency plans, either) or ongoing intelligence operations. A government should not disclose information that could directly lead to the death of a citizen (but what about the deaths of non-citizens?). We don’t need to know about cutting-edge research in military technology. And a government should probably be able to keep secret things that will put that country or its citizens at a competitive disadvantage with other countries or harm that country’s ability to work in the international community….

…

One other thing to keep in mind, is who should decide what information should remain secret and which information should be disclosed? It is probably too easy for a government to simply err on the side of secrecy; keeping the secret doesn’t harm anyone, but disclosing it might. The obvious distrust that many have in government may come from governments keeping too many secrets (or it may come from any of a number of other things, like torturing civilians, waging wars, denying rights, etc.). But as much as we may distrust governments to make a proper balancing determination with regard to what should or should not be kept secret, do we really think that the decision should be left to one or a few individuals who may have their own personal agendas (I’m pissed because I didn’t get promoted; my boss didn’t adopt my idea; I don’t like Secretary of State Clinton…)…

So, what do you think? Is Edward Snowden a hero or a traitor or something in between? Is data mining different than content disclosure? Do you object to the NSA having access to phone records? Let me know what you think.