June 12 (Bloomberg) -- Daniel Ellsberg, leaker of the Pentagon Papers, wrote a column this week praising Edward Snowden, the National Security Agency contractor whose revelations have cast new light on the extent of the government’s electronic surveillance.
“Obviously,” Ellsberg writes, “the United States is not now a police state.” A few paragraphs further on, he says, “the so-called intelligence community has become the United Stasi of America.”
I’d be more inclined to laugh at Ellsberg’s confusion if I didn’t recognize a little of it in myself -- a fact that startles me, by the way. I’m a U.K. citizen hoping soon to become a U.S. citizen, a lifelong admirer of the American project and its founding principles. But after living here for eight years, I’ve started to wince when I hear the expression, “It’s a free country.”
America’s post-Sept. 11 procedures for dealing with potentially hostile foreigners haven’t helped. “Welcome to America,” say the signs at Dulles International Airport as you line up to have your fingerprints taken. But I’m mainly struck by the weaknesses of the constitutional checks and balances that one thinks of as quintessentially American -- so often, they seem to be failing where they’re needed most. There’s a pattern here, and you don’t need to be an NSA data-miner to see it.
The secret court that oversees NSA operations is widely regarded by security-law experts as a rubber stamp. In 2011, it approved 1,674 of the 1,676 electronic surveillance applications it received (the other two were withdrawn). Congressional intelligence committees have been briefed on the NSA’s surprisingly wide domestic data-mining operation, and some members have questioned its propriety. They’ve been unable to take the matter further because of the very secrecy laws Congress has put on the books.
Oversight after a fashion is in place, and the policy is legally grounded, so the view that NSA’s huge data-gathering operations are blatantly unlawful or unconstitutional is wrong. Yet how reassured should one be by that? Domestic surveillance of telephone metadata goes much further than most observers had imagined; questions about the “trade-offs” between security and civil liberties, as President Barack Obama put it, plainly arise; and the legal authority for the policy is at least disputable -- or would be, if anybody outside the government knew enough, or had legal standing, to dispute it. In a truly Orwellian touch, we are only having the debate Obama says he wants because Snowden broke his promises and the law.
Obama is right that there’s a trade-off, and most Americans seem to be happy, as I am, to accept some modest invasion of their privacy in return for more effective protection against terrorism. But that can’t mean carte blanche. Safeguarding operational details is one thing -- they have to be kept secret, of course -- but judging this trade-off in broad strategic terms is not something we can safely leave to security professionals under the merely ceremonial oversight of Congress and the courts.
Data-mining for anti-terrorist purposes makes me especially uneasy. We haven’t heard much about the effectiveness, as opposed to the ethics or legality, of the NSA’s programs. On the face of it, the techniques in question would seem badly suited to the task. Terrorist acts are so rare that they resist pattern-finding. The implication is a very high rate of false positives. In addition to the question of one’s right to privacy, therefore, a separate danger arises -- that data-mining will bring large numbers of innocent people under suspicion. This is a problem, because protecting the innocent suspect is not something at which the U.S. excels.
Why do I say that? Partly because America, a nation of laws, has come close to ending the costly nuisance of the jury trial. Guilty pleas nowadays dispose of almost all federal criminal cases -- and the standard method of obtaining those pleas is, if you ask me, a constitutional atrocity. Perhaps you think this is a different subject. Bear with me.
Again, you see the separation of powers at work. Congress provides draconian penalties and, in many instances, mandatory minimum sentences for each separate count of a crime. Prosecutors are thereby empowered to threaten defendants with decades in jail if they opt for trial or to offer a light sentence on a lesser charge if they plead guilty. This plea bargain system simply begs to be abused, yet the courts preside over it without protest.
Incidentally, Snowden will probably confront this set of choices when the U.S. authorities get their hands on him. In a case that attracted much less attention, Thomas Drake, a previous NSA leaker, was charged in 2010 with five counts of espionage, one of obstructing justice and four of making false statements to the Federal Bureau of Investigation after he spoke to his superiors and then to the Baltimore Sun about failures in NSA programs.
Drake faced spending the rest of his life in jail -- but he didn’t look like a traitor and gained some public support. He was offered and, despite the risk, rejected a series of deals. In the end, a man prosecutors had maintained was an evil traitor deserving of the harshest punishment was invited to plead guilty to a misdemeanor -- unauthorized use of a computer -- and sentenced to 240 hours of community service with a year’s probation.
You may also recall the recent and not unrelated case of Aaron Swartz -- the brilliant young Internet activist threatened with 35 years in prison and $1 million in fines for illegally downloading academic journal articles. That exercise in prosecutorial overreach ended with the accused killing himself.
In a police state, to be sure, people like Drake and Swartz might simply disappear, and people like me wouldn’t be writing about them. So no, this isn’t the United Stasi of America. Nonetheless, one still ought to ask, how far can one trust the security and law-enforcement complexes to police themselves? My answer would be: You can’t.
Power often seems to infect the powerful with tyrannical instincts. Shroud their transactions in secrecy and the danger multiplies. The people involved aren’t necessarily bad. First and foremost, in fact, they are bureaucrats -- as muddled and incompetent as everybody else, with banal bureaucratic interests to advance. The NSA disclosures should remind us of this by drawing attention to the sheer size of the interests involved. Are NSA contractors who specialize in data mining likely to highlight the ineffectiveness of that technique? Is America’s law-enforcement industry -- with its professionalized, para-militarized and literally uncountable agencies -- going to call a halt to its own growth or ask for its powers to be curbed?
Then who is? It’s a danger this country’s founders understood. They devised protections and enshrined them in documents that still command quasi-religious devotion among Americans. That’s admirable. But in certain areas, including those where the state is most apt to indulge its totalitarian appetites, these protections have become matters more of form than content. Congress has failed. The courts have failed. As a would-be U.S. citizen, I’m hoping that might change.
(Clive Crook is a Bloomberg View columnist.)
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