Debunking the debunkers

As a life long, die hard, in-your-face Liberal (spelled with a capital L), it irks me to be in agreement with the right, unless they have crossed the aisle and embraced a progressive cause. But the NSA scandal has actually left me in agreement with many on the right. Although in agreement, I would like to think that my opinion is based a bit more on rationality, and pragmatic common sense, as opposed to their usual jingoistic 'Us vs. Them' mentality.

I read an article the other morning posted at Mother Jones. They had picked in up from another website (TomDispatch) and posted it in an effort to debunk so-called “myths” surrounding NSA surveillance. As I read through it, I was dismayed at the overreach of the writer, and the broad based assumptions and specious arguments made in an effort to debunk said “myths”.

Please read the article as posted by Mother Jones (at the link below).

http://www.motherjones.com/politics/2014/01/10-myths-nsa-surveillance-debunk-edward-snowden-spying?page=1

(Afterward, please read my point by point rebuttal arguments below. It may be helpful to read them side by side, in order to contrast them together more efficiently, and maintain continuity.)

As disconcerting as it is even to me, I recognize that this is a very complex issue. The moral questions are obvious, however looking at it objectively, there are few clear cut solutions or obvious fixes.

Ultimately, per our system of government, we must allow the Congress and the Judiciary to do their jobs, and strike a balance between liberty, safety, and morality.

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1) NSA surveillance is legal

Legal. Not with “quotation marks”, and not final, but legal. Just as slavery was once legal, legal does not differentiate between good law or bad law. Legal is law.

Until such time as these surveillance programs are deemed illegal, they are still legal. This is not a question of semantics, this is a question and point of law. Even if down the road the Court finds that some or all of these legal techniques are unconstitutional, that will not negate their legality today, it will only make them illegal moving forward. Just like owning slaves before Emancipation didn’t make you criminal, only owning them afterward did.

The question of the secrecy of these laws, is a question of national security. Classified and Top Secret information is kept from the public and not from the people charged with oversight of such programs. There are certain things that the public does not have a right to know, specifically when it comes to intelligence matters. This is not an opinion, this is factual based on FISA rulings, several Supreme Court rulings throughout the years, as well as upon precedents set by lower courts.

2) If you’ve done nothing wrong…

The Constitution does not in fact guarantee a right to privacy. There is an implied right, but not a guaranteed right.

The Fourth Amendment prevents the illegal search and seizure of your person and property. This boils down to the fact that the State cannot search you or your belongings without a warrant in your home. In public is another matter.

The police do not require a warrant to perform a search of your pockets, your vehicle, or even your blood alcohol level when you are outside, in the general public. All that they require is probable cause or reasonable suspicion. The information superhighway is a public domain, and not something that you can hide in your sock drawer at home. This does not make it right, but it is the law.

That said, police use many different means during an investigation. Many such means cannot be used against you as evidence (lie detector tests and psychological profiles for instance), however they are investigative tools used to establish the viability of a suspect.

So although the concept of “if you have nothing to hide, you have nothing to fear” is a distraction, it is disingenuous to claim that investigative tools used to establish or exonerate a suspect’s viability are somehow illegal and draconian. If the information is deemed by the courts to be inadmissible as evidence, then they cannot be used against you in a prosecution.

3) The use of “metadata”

Again, this would fall under the realm of an investigative tool. Like a lie detector, it may not be admissible in court, however it would establish motive and opportunity, proving the viability of a suspect in order for the State to zero in on a suspect and collect evidence. Establishing the whereabouts and movements of a “person of interest” is a standard investigative tool, and one that is quite legal and Constitutional.

Alternatively, if the tracking of someone’s whereabouts and movements brings the police to your door with questions, those questions would also be a part of the investigative tool chest, and could either make you a “person of interest”, or clear you in an investigation.

4) Checks and balances…

Yes there are checks and balances and oversight of the NSA and surveillance programs. The problem with checks and balances is that they are only as thorough as the questions being asked.

The lack of proper oversight can be laid at the feet of those who failed to properly oversee such things. If the proper questions were not posed to the NSA, one cannot blame the NSA, they must blame the inquisitors.

I personally warned of the possibility for abuses to Nancy Pelosi’s Chief of Staff, and was rebuffed like some scared little conspiracy theorist while the USA PATRIOT Act was being debated.

Granted, Snowden’s information has lead to finally asking the proper questions, however he didn’t take that information to the overseers, he took it to the foreign press. A whistle-blower would have brought this to an oversight committee or a member of Congress in an effort to expose a lack of oversight and his concerns of malfeasance, and hopefully establish better oversight and proper lines of inquiry. If that was unsuccessful, then exposing his concerns to the press would have been a last line of defense, at which time the press would have brought this information first to those charged with oversight, and only then to the public at large.

There are laws in place that provide a venue for whistle-blowers and protections for the same. Snowden could have blown a whistle, but instead leaked classified information to a foreign press agent.

(note: My article on Edward Snowden can be found at the link below)

http://incendiarylanguage.blogspot.com/2014/01/for-whom-whistle-blows.html

5) But I trust the President on this…

This is an entirely false premise, as the President (Bush, Obama, and their predecessors) only receive national security information. They do not collect it. They do not oversee it. They only receive it, and use it to the best of their ability to fulfill their Constitutional duties.

6) The private sector uses personal information so why not the government?

This goes back to the information superhighway. The internet is not a government run entity. Sharing your personal data with facebook is a choice and a function of agreement. But once you do, it is now out there in the ether - public domain.

The Fourth Amendment prohibitions of illegal search and seizure do not apply in the same way when you broadcast information publicly, which is what you do every time you use the internet or a cellular phone.

If you want the Fourth Amendment to apply, keep your communications inside your home. Write letters and get a land line, as both require a warrant before they can be reviewed by the State. But once it is out there in public, your implied right to privacy is diminished greatly.

7) Isn’t surveillance for our own good?

This is the "Old Reliable" argument. Although I find it personally distasteful, I do see the viability of surveillance as a deterrent and preventative measure to attacks on our national security.

Although rife with possibilities for abuse, surveillance tactics have been vital in maintaining the safety of the U.S. as a nation. Surveillance tactics were used to apprehend Al Capone, John Gotti, and the Oklahoma City bombers, among others.

Again, the tactics and methodologies used by law enforcement are tools. But evidence used in a prosecution must meet the bar of Constitutional protections. These investigative tools are used to prevent crimes and/or apprehend criminals by establishing their viability as suspects. They are not used as evidence in their prosecutions in a court of law. We are after all a nation of laws, with the right to review the evidence against us and to face our accusers.

8) Terrorists are everywhere and dangerous

Indeed. Osama bin Laden was a terrorist, but so too was Timothy McVeigh and Eric Rudolph. Osama claimed responsibility for his crimes, making him the primary suspect. Tim McVeigh only did after being arrested, and he was arrested by law enforcement officials who used investigative tools and a snitch, while Rudolph was on the lam for decades, and it took years to find him and build a case.

If fertilizer sales been reported before hand (which they are now), McVeigh could have been apprehended before carrying out his devastating attack. Had metadata been scrutinized (which it is now), Rudolph could have been established as a viable threat, and the Atlanta Olympic bombing could have possibly been thwarted.

The same people who vilify Bush and his administration for “not connecting the dots” are the same people who now glorify Snowden for bring our attention to the fact that the NSA is now trying to “connect the dots”. The hypocrisy is mind boggling.

9) We’ve stayed safe. Doesn’t that prove its efficacy?

Not at all. That said, it doesn’t disprove it either.

10) Doesn’t protecting America come first?

This argument is the most egregious of all. Protecting national security and providing more for the infrastructure are two entirely different things.

Though I whole heartedly agree that we as a nation do not do enough to rebuild ourselves and reclaim our standing as a Great Society, I also believe that keeping our nation safe from threats, both foreign and domestic is a responsibility that we have as a government, and as a people.

If one were to try an prioritize what comes first, my argument would be election reform and taking money out of the electoral process.

But the government doesn’t have that luxury or get to prioritize. It has to maintain all of it’s functions, all at the same time.