By Michael Barone
Thursday, June 13, 2013
"Gentlemen do not read each other's mail."
That's what Secretary of State Henry Stimson said to explain why he shut down
the government's cryptanalysis operations in 1929.
Edward Snowden, who leaked National Security Agency
surveillance projects to Britain's Guardian, evidently feels the same way.
"I can't in good conscience allow the U.S.
government," he explained, "to destroy privacy, Internet freedom and
basic liberties for people around the world with this massive surveillance
machine they're secretly building."
Some questions about this episode remain. How did a
29-year-old high school dropout get a $122,000 job with an NSA contractor? How
did his job give him access to material including, he says, Foreign
Intelligence Surveillance Agency Court documents?
And why did he flee to China's Special Autonomous Region
of Hong Kong and make his revelations just before the Sunnylands summit, where
Barack Obama was preparing to complain to Xi Jinping about China's cyberwarfare
attacks?
Oh, and now that he has checked out of his Hong Kong
hotel, where has he gone?
All tantalizing questions. But some other questions that
many are asking have clear answers.
Is the NRA surveillance of telephone records illegal? No,
it has been authorized by the FISA Court under the FISA Act provisions passed
by (a Democratic) Congress in 2008.
The NSA is not entitled to listen to the contents of
specific phone calls. It has to go back to the FISA Court for permission to do
that.
Under the Supreme Court's 1979 Smith v. Maryland decision,
the government can collect evidence of phone numbers called, just as the
government can read the addresses on the outside of an envelope.
Snowden presented no evidence that the NSA is abusing its
powers by accessing the private information of those with obnoxious opinions.
There is, so far anyway, no evidence of the kind of political targeting
committed by the Internal Revenue Service.
Instead the NSA is looking for patterns of unusual
behavior that might indicate calls to and from terrorists. This data mining
relies on the use of algorithms sifting through Big Data, much like the data
mining of Google and the Obama campaign.
Snowden also exposed the NSA's PRISM program, which does
surveil the contents of messages -- but only of those of suspected terrorists
in foreign countries.
During George W. Bush's administration, many journalists
and Democrats assailed this as "domestic wiretapping." But the only
time people here are surveiled is when they are in contact with terrorism
suspects in foreign countries.
The right of the government to invade people's privacy
outside the United States is, or should not be, in question.
You might think, as Henry Stimson did in 1929, that it's
ungentlemanly. But as secretary of war between 1940 and 1946, Stimson was
grateful for the code-breaking programs that enabled the United States and
Britain to decrypt secret Japanese and German messages.
That code-breaking, as historians recounted long after
the war, undoubtedly saved the lives of tens of thousands of Allied service
members.
"The Constitution and U.S. laws," as former
Attorney General Michael Mukasey wrote in The Wall Street Journal, "are
not a treaty with the universe; they protect U.S. citizens."
It is an interesting development that Barack Obama has
continued and, Snowden asserts, strengthened programs that he denounced as a
U.S. senator and presidential candidate.
As George W. Bush expected, Obama's views were evidently
changed by the harrowing contents of the intelligence reports he receives each
morning. There are people out there determined to harm us, and not just because
they can't bear Bush's Texas drawl.
The Pew Research/Washington Post poll conducted June 7 to
9 found that by a 56 to 41 percent margin Americans found it
"acceptable" that the "NSA has been getting secret court orders
to track calls of millions of Americans to investigate terrorism."
That's similar to the margin in a 2006 Pew poll on NSA
"secretly listening in on phone calls and reading emails without court
approval."
Those numbers are in line with changes in opinion over
the last two decades.
With increased computer use, technology is seen as
empowering individuals rather than Big Brother. And with an increased threat of
terrorist attack, government surveillance is seen as protecting individuals.
In these circumstances most Americans seem willing to
accept NSA surveillance programs that, if ungentlemanly, are not illegal.
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