By Kevin D. Williamson
Sunday, January 19, 2020
Some political dilemmas come to down to: Whom should we
trust more? In the case of Apple vs. the FBI, the question is: Whom should we
distrust less?
Advantage: Cupertino.
As the proverb has it, Hard cases make bad law. But they
sometimes make pretty good politics.
Notionally, the dispute here is about the case of Second
Lieutenant Mohammed Saeed Alshamrani of the Royal Saudi Air Force, who shot
eleven people, killing three, at Naval Air Station Pensacola, where he was
undergoing training courtesy of the U.S. government, whose agents assure us
that they are competent to vet would-be immigrants and visitors for jihadist
sympathies.
The feds tend to be more effective after the fact.
Twenty-one of the nearly 900 Saudi military trainees in the United States are
being sent home after a federal investigation revealed them to be in possession
of “derogatory” material ranging from anti-American literature to child
pornography.
There will be no trial of Alshamrani, who was liberated
from this vale of tears at the scene of his crime by the marksmanship of
Escambia County sheriff’s deputies. But there is an ongoing investigation.
Alshamrani was the sole shooter, but he did not act alone: The evening before
the massacre, he entertained Saudi friends at a dinner party at which they
watched videos of mass shootings, and three of them took video of the incident
while it was underway. The FBI rightly wants to understand this incident in the
broader context of jihadist radicalization with an eye toward preventing future
atrocities.
And so the FBI would like to have a look at Alshamrani’s
iPhone. But they cannot access it, and they want assistance from Apple, which
has declined to give the U.S. government what it really wants: a “backdoor” to
defeat the encryption in Apple products, something it has been seeking for
years and pressing for in similar cases such as that of the San Bernardino
terrorists. As Ben Wizner of the ACLU argues in Wired, “The Department of Justice is trying to identify the most
politically advantageous case in which to press a longstanding desire, which is
that companies reengineer their products to allow easy surveillance.”
In the San Bernardino case, a third party was able to
provide access to the phones. The FBI’s crime lab is hard at work on
Alshamrani’s two iPhones—in a truly impressive feat, they apparently have
managed to get the devices into operational condition in spite of the fact that
Alshamrani shot them. But they are not confident that they can access them.
Apple, for its part, has provided access to a great deal of cloud data but
declines to provide the means for defeating its encryption on the grounds that
there is no way for them to prevent hackers and other criminals from exploiting
such a backdoor.
But bad actors outside the government are not the only
concern here. There are plenty of bad actors inside our government as well.
From the Obama administration’s politicization of the IRS and other federal
agencies with easily weaponized investigatory powers to the abuses of
surveillance protocols in the investigation of the Trump campaign
(“antithetical to the heightened duty of candor” in the sterile language of
Rosemary Collyer, the presiding judge at the FISA court), the federal
government has shown itself incapable of deploying its awesome powers in an
honest and politically neutral fashion.
The ethical lapses of the federal government must be
considered in the context of its general incompetence in the matter of
deploying the powers it already has to prevent terrorist attacks such as the
one in Pensacola. Return your minds for a moment to the fact that at least 21
of the Saudi military personnel brought here for training were in possession of
anti-American propaganda, which should have raised counterterrorism concerns,
and child pornography, which is a regular old workaday felony.
Performing background checks on military personnel, who
are under certain obligations that supersede ordinary privacy expectations, is
a relatively easy task. And we are not talking here about members of the
Norwegian military but members of the military of Saudi Arabia, the government
of which is not famous for its interest in the privacy of its subjects or their
civil liberties.
No humility about its shortcomings stopped the U.S.
government from providing these men training in the killing arts at the expense
of the U.S. taxpayer. Nor did it stop the U.S. government from importing a
terrorist who carried out a deadly attack on U.S. soil.
Mature judgment requires us to balance the likelihood
that additional powers will be abused against the likelihood that some good
will come of them, and in this calculation, Washington is found wanting.
Apple is right to look after the privacy interests of its
customers, and to assist law enforcement where doing so is not detrimental to
those interests. And the U.S. government’s law-enforcement and intelligence
operatives are right to do what they can to learn what can be learned from the
communications of terrorists such as Mohammed Saeed Alshamrani. But they are
the ones who have to do their job—it is not desirable that Apple should be
deputized to do it for them, or that Apple should give them a master key to
Americans’ private communications—because the U.S. government already has shown
on many occasions that it simply cannot be trusted with such power.
It is worth remembering that Senator Barack Obama was a
civil libertarian who worried that the PATRIOT Act would undermine the privacy
of American citizens, and that President Obama, only a few blinks of the eye
later, decided that the so-called war on terror invested him with the
unilateral authority to order the assassination of American citizens without so
much as a legislative by-your-leave.
Political power is always growing and generally
metastatic, and the case of Mohammed Saeed Alshamrani is not only—or even
mainly—about Mohammed Saeed Alshamrani.
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