We Don’t Need More ‘Spin’ About NSA’s Unconstitutional Domestic Snooping, We Need It Stopped – OpEd


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In response to an avalanche of criticism over revelations of his National Security Agency’s (NSA’s) bulk collection of Americans’ telephone and other electronic metadata, General Keith B. Alexander, the director of the agency, in a recent interview with the New York Times, claimed that his spy agency is just misunderstood—not operating illegally or nefariously. Alexander argued that he and his agency simply need to do a better job explaining what they do to the American people.

Alexander told the Times that, “Given where we are and all the issues that are on the table, I do feel it’s important to have a public, transparent discussion” and that “they [the American people] need to understand the truth about what is going on.”

Of course, this statement is an implicit admission that up to now, the agency had not come clean about what it was doing. Even though it is supposed to be the servant of the people in a republic, protecting them from harm, the agency never made any effort to explain, even vaguely, what it did or how it went about it. The organization’s operations were so shrouded in secrecy that experts and reporters jokingly referred to it as “No Such Agency.” Alexander and the agency are now adopting a slightly more open policy of glasnost only because they face congressional restrictions on their operations in the wake of metadata scandal.

Even then, Alexander unapologetically defended the domestic snooping efforts as being the only alternative to protecting America from terrorists and noted that the programs’ disclosure had caused great harm to U.S. national security by allowing adversaries to learn how to avoid detection by American intelligence. He defended the agency’s actions as legal and even audaciously argued that the two biggest threats to the United States that he saw—terrorism and cyberattacks—would require more computer monitoring.

Even if we assume that the agency’s actions have always been legal—which even the Foreign Intelligence Surveillance Court, NSA’s lapdog overseer, has debunked—they are clearly unconstitutional. Alexander acknowledged that the agency collects the “business records” of all telephone calls and many other electronic communications made in the United States but is prevented from investigating that mound of data unless it has “reasonable, articulable” justification involving communications with terrorists abroad. That statement is an admission that the agency’s standard for snooping at home falls short of the requirement of the US Constitution’s Fourth Amendment: to search a person’s information and belongings, the government needs to get a search warrant based on “probable cause” that the person has committed a crime. The nation’s founders, in the Fourth Amendment, deemed this requirement to be so important that no exemptions were made, not even for national security.

The founders knew—which the directors of the current global American empire have forgotten—that the United States, away from the world’s centers of conflict, has had a very intrinsically secure geographical position. In modern times, even with the advent of modern transportation and communication, nuclear weapons, and transnational terrorism, America is inherently secure. Although modern transportation and communication have made the world more interdependent, nuclear weapons, nationalism, and the proliferation of arms have made the world generally less interdependent in the security realm—that is, the number of cross border wars of aggression has been declining for decades. Moreover, North America—despite the fluke, but horrific, terrorist attack on September 11, 2001—has otherwise always been one of the safest places in the world from terrorism. The average American’s chances of ever being slain by a terrorist are less than being killed by lightning and about the same as being crushed by an asteroid. And the main cause of Islamist terrorism against US targets—at home and abroad—is US intervention in and occupation of Islamic countries. For example, the root causes of the 9/11 attacks and the Times Square and underwear bombing attempts lie in such profligate and unneeded US interventions. If they were stopped, General Alexander would have less of an excuse to spy on Americans. But as the low probability of American deaths from terrorism indicates, he really doesn’t have much of a reason now.

Foreign and national security policy should be protecting the republic and its institutions, not undermining them or taking priority over them. Unfortunately, as in Roman times, the republic is being undermined by a global empire.

Jim Sensenbrenner (R-WI) and Senator Pat Leahy (D-VT) are making at least some effort to push back on empire, in favor of the republic, by attempting to curtail unconstitutional snooping on Americans. Sensenbrenner—a co-author of the USA PATRIOT Act, which unfortunately originally authorized some of the unconstitutional spying—has now had second thoughts and is drafting legislation to reduce domestic surveillance. Leahy, chairman of the Senate Judiciary Committee, has already drafted a bill to terminate NSA’s ability to systematically suck in Americans’ phone records. Such domestic surveillance should be eliminated, unless it falls strictly within the Constitution’s requirement of obtaining a search warrant only if “probable cause” exists that a suspect has committed a crime. The republic’s national security will hardly be compromised if the Constitution is followed, but the republic itself will be undermined if it is not.


About the author:

Ivan Eland

Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books Partitioning for Peace: An Exit Strategy for Iraq, and Recarving Rushmore.

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