The Surveillance Debate

November 3, 2013 § Leave a comment

My friend Sid Eschenbach,  with whom I have sparred at length about the NSA surveillance program, sent me a link to a great source of information about it, published by the Guardian.  Here is that link:  Guardian Surveillance

This comprehensive source of information is interesting and factual.  It deserves the widest possible distribution.  I think it raises issues that will determine the kind of country we want America to be and to become.

My debates with Sid have caused me to think beyond my initial hostility toward government’s intrusive snooping.  The real question is:  How can we preserve our interest in being let alone while permitting our government to take sensible steps to protect us from harm?  The Fourth and Fifth Amendments to our Constitution express our willingness to take some risk as a  price of freedom, but how much risk?

I have been pleased to learn that significant numbers of my fellow countrymen/women share my anxiety about this matter and, according to recent polling, seem willing to accept some risk in exchange for preserving limits on government power.

The challenge, as I see it, is to craft legislation that permits the use of government surveillance to thwart efforts by foreigners to commit terrorist attacks on the United States, while prohibiting the use of that surveillance in criminal prosecutions or in civil or administrative proceedings.

The history of Fourth Amendment law is useful as a guide toward that result.  After decades of abuse by law enforcement agents, the federal courts finally used a remedy that was generally effective:  the “exclusionary rule”.  That rule made evidence obtained as a result of any method that violated the Constitution inadmissible in a criminal proceeding.  In effect, it told cops, “If you beat a confession out of a suspect, he will be set free even if he is guilty.”  It did not eliminate the problem, but it did require cops to perjure themselves in order to excuse their lawlessness.  The possibility of going to prison moderated the zeal of many cops.

That is the remedy that might correct some of the surveillance abuses.  “Terrorism” would have to be carefully defined in the law.  The law would prohibit the use of any information or evidence obtained, directly or indirectly,  pursuant to the laws serving as a basis for NSA’s surveillance programs in any criminal, civil or administrative proceeding , followed by two exceptions:  First, the law would not apply to prosecution of “terrorists”.  Second, the law would not apply to evidence obtained pursuant to a warrant issued by a court of competent jurisdiction.  The law would declare that it was not intended to diminish or impair any right protected by the Fourth or Fifth Amendments to the Constitution.   Finally, the law should prohibit any court from issuing a warrant based on “pattern of life” claims and any warrant not directed at specifically identified individuals or corporate entities.   Blanket warrants permitting data vacuuming would not be permitted.  This would not prevent that kind of metadata accumulation for the limited purpose of detecting terrorists, but it would prevent the use of evidence obtained pursuant to such warrants for any other purpose.

The Constitution does not prescribe limits on the extent of the rights it protects.  Congress can enlarge and extend those rights.  This law would do so.

I am not sure these restrictions will be enough to protect us from government abuse.  I would much prefer a blanket ban on government acquisition of metadata for any purpose, requiring a court order based on specific need and fact-based reasonable suspicion as a prerequisite for access to such data.  I have what I believe is a well founded fear that, no matter what legal restrictions are imposed, zealous bureaucrats will get around them through absurd opinions written by unethical lawyers and, if all else fails, through perjury and deceit.  The recent lying to a congressional committee by James Clapper, Director of National Intelligence, who has not been prosecuted for perjury, plainly supports my fears on this score.

I am very encouraged by the news that Glenn Greenwald has obtained funding for the launch of a new news service that will be based on the muck-racking tradition of journalism identified with Ida Tarbell, Upton Sinclair, Ray Stannard Bakee and Lincoln Steffens.  It may be that, once again, the First Amendment will save us from government run on the East German Stasi model.

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