After I downgraded the scandal value of the National Security Agency’s massive gathering of our phone records and e-mail data, a curious reader raised a thoughtful question: Would I “have the same tone if this story broke while (George W.) Bush was prez?”
Good question. My answer is yes, based on my reaction to a similar blow-up in the Bush years.
“Considering his track record,” I began a column in December 2005, “I am not too shocked to hear that President Bush secretly authorized the National Security Agency to eavesdrop without warrants on people inside the United States. I am only disturbed by his reluctance to tell us about it.”
The New York Times had reported that Bush had ordered warrantless NSA monitoring a year earlier of international telephone calls and e-mails of thousands of people inside the U.S. The goal was to track phone numbers possibly linked to al-Qaida. Senators and a federal judge raised so many constitutional concerns that the Bush administration suspended the operation in 2004, according to the Times.
But recent reports reveal that that the warrantless surveillance not only resumed but grew like a bodybuilder on steroids during both the Bush and Obama administrations in two programs.
One program, reported by the Guardian, involves massive surveillance of phone records. The other, according to the Washington Post, is called PRISM. It involves a gathering of personal data from major Internet companies in a surveillance that targets the e-mails of non-U.S. citizens outside the U.S. Both programs are allowed under Section 702 of the Foreign Intelligence Surveillance Act, passed in 2008.
My view on this matter has not changed much since that earlier column. Debatable as it may be, I don’t find the massive surveillance to be as big of a problem as the secrecy that surrounds it.
First, if this is Big Brother, it’s Big Brother extra-lite. The telephone monitoring only gathers “metadata,” a tech word for the numbers, time, date and length of phone calls, not the conversations. For that, the Constitution requires a warrant.
Under the law, that compares to the difference between reading somebody else’s mail versus reading the names and addresses on the outside of the envelope. Federal court rulings in the 1970s found there was no reasonable expectation of privacy or violation of the Fourth Amendment in reading what’s written on the outside of the envelope.
And PRISM, as I mentioned, applies only to communications outside the U.S. by foreigners. It would be irresponsible to bypass opportunities to intercept messages between suspected terrorist organizations and potential recruits.
The problem is the level and nature of the secrecy surrounding the programs. If our national leaders want us Americans to trust them, they need to learn how to trust us.
Of course, government needs to keep some things secret. But excessive secrecy made disclosures of massive NSA snooping into our phone records and overseas e-mails more shocking than they deserved to be. If the Bush or Obama administrations had disclosed them before media did, there would be strenuous and understandable objections from civil libertarians and others. But we’re a long way from Big Brother.
The NSA controversies reveal problems that critics in both parties have warned about for years: too much access for those who shouldn’t have it — like Edward Snowden, the confessed NSA leaker — and not enough disclosure to the American public whose phone records are being gathered.
It is a long-standing sarcastic joke in government circles that more information was classified to hide it from the American public than to keep it from our enemies, who often already know about it. In fact, according to reports, that’s why Osama Bin Laden went off the grid in 1998. After a cruise missile attack narrowly missed him, he abandoned his satellite phone and relied instead on a human courier.
Worst of all, secrecy blocks intelligent debate about issues about which Americans deserve to be informed. If the program is worth the effort, our elected leaders need to tell us about it. We can handle it.
CLARENCE PAGE’s column is distributed by Tribune Media Services Inc.