The Big Chill
Scott Lemieux made an observation about the findings of the Civil Liberties Oversight board's findings that I think are important to keep at the forefront of our minds. Yes, the legality of the programs may be debatable. I happen to think this is just another case of the politicians legalizing unconstitutional government behavior and the courts acquiescing in a time of crisis. These things tend to take time to straighten out.
But this is the real and present danger we are facing with these NSA Mass data collection programs:
In a perverse way, programs that restrict civil liberties become self-justifying because of restrictions on civil liberties are simply assumed to increase security and order. For example, in their 2007 defense of Bush-era expansions of executive branch powers to combat terrorism, Terror in the Balance, the eminent legal scholars Eric Posner and Adrian Vermuele proceed under the (empirically undefended) assumption that there is a substantial policy space in which there is a direct tradeoff between civil liberties and national security. This assumption stacks the political deck against civil liberties, because most assertions of executive authority are assumed to increase national security by virtue of their burdens on freedom on the one hand, and on the other that the people most likely to have their rights violated are likely to be unpopular minorities. The tendency of public officials to exaggerate threats further throws the tradeoff out of balance.
But the NSA program illustrates that this assumed tradeoff is often unfounded. Even in theory, in a world of finite resources it's far from clear that collecting metadata is a better means of protecting national security than searches based on individualized suspicion. Analyses of metadata may reveal suspects and evidence that might otherwise go hidden, but they also consume valuable resources searching data generated by people with no connection to terrorism. Whether this tradeoff is beneficial is, at best, questionable. Generally, one doesn't add triple the size of the haystack before searching for the needle. Given the real burdens placed on fundamental rights, the burden of proof is on those asserting that the programs are effective enough to justify such burdens.
The report concludes, however, that such evidence is sorely lacking. The report concedes three theoretical advantages to preemptively collecting huge amounts of metadata: speed, historical depth, and breadth of potential contacts. That these programs have some value in theory, however, is insufficient to demonstrate that they are superior to other available methods or effective enough to justify their intrusions into the privacy of individuals. Ultimately, after considering a substantial number of cases where terrorist plots have been stopped, the report concludes that the NSA program does not come close to justifying its costs: Based on the information provided to the Board, we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation." In the rare cases where the metadata has provided leads pertaining to known terrorists, it had simply duplicated the work already being done by other law enforcement agencies such as the FBI.
And while the benefits of the program are ephemeral and at best speculative, the burdens are very real. The report shows in detail that the knowledge that communications being monitored can have a chilling effect on the speech and associational rights of journalists, activists, and scholars with no connection to terrorism. The report refers to Justice Sotomayor's already influential concurrence in U.S. v. Jones, in which she correctly observes that "[a]wareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse."
It's the self-censorship, the hesitation, the fear that what you say or write or otherwise express today could be lurking somewhere on what Snowden referred to as your "permanent record" and come back to haunt you in the future. The collection of all this mass data amounts to a government dossier on every individual who has a cell phone or a computer. It's forcing journalists, teachers and political dissidents to be afraid of doing their jobs and exercising their democratic rights. It's making average citizens think twice about even doing silly things like search Amazon for pressure cookers or take a look at a controversial web-site.
And this is because no matter how much you may trust Barack Obama not to abuse that information it was only a few years ago that a man named Dick Cheney had access to it. Any of us can imagine what he might have done with it in the event of another major terrorist attack --- after all, the man hijacked the presidency and illegally ordered commercial planes to be shot down after the first one. You simply cannot rely on the good will of people like him to resist using that information for nefarious means in the future. And frankly, mere fact that the collection of all this information isn't giving results should make us all very leery about why they want it so badly.
The more power you give them the more they want, the more the bureaucracies need to justify themselves and ultimately the more tempting it will be to use the information for other purposes. It's just a very bad idea in every way.