The (Likely) New Status Quo

 

shutterstock_90596905As you’ve probably heard, three provisions of the USA Patriot Act expired over the weekend, including the controversial bulk-collection of telephone metadata that the courts found wanting last month. In its place, Congress seems likely to pass some version of the USA Freedom Act,* which — among other things — stops the NSA from collecting bulk data but requires telephone carriers to store it on their behalf. In today’s The Wall Street Journal, the editors bring up some legitimate objections to the new legislation, concluding as follows:

So per­haps Sen­ate pas­sage of the House bill is the only re­al­is­tic path to pre­vent even greater harm to U.S. secu­rity. But please spare us the civil-lib­er­tar­ian triumphal­ism. The real story this week is that Con­gress is harm­ing and maybe end­ing an im­por­tant de­fense against ter­ror­ism, while pretend­ing not to.

Triumphalism is neither healthy nor laudatory and the new legislation is hardly beyond reproach, either from a philosophical or a practical perspective. The new process adds layers that will make accountability more difficult when failures occur, and seems to present a logistical nightmare from a data-management perspective. It is at least conceivable that important intelligence might slip through under the new system that would previously have been detected.

On the other hand, IS and al-Qaeda have little reason to do whatever the jihadist equivalent is of popping open a bottle of champagne. As I understand it, our intelligence services have essentially no legal restrictions on their ability to mine foreign sources of data — meta or otherwise — and bulk collection is only a small section of what they do. Moreover, active investigations are grandfathered in, and these programs appear to have played a relatively minor role in disrupting plots post 9/11.

What we’re seeing here is a slight rebalancing of Americans’ conflicting desires for security and liberty. As such, it’s most likely less harmful than its critics maintain — and is less of a victory for privacy than its proponents would have you believe —but it’s likely closer to what Americans desire.  The wisdom, foolishness, or innocuousness of our decision will only be borne out in time, but it will be on our shoulders, as well it should be.

* I herby propose an amendment to the US Constitution to the effect that co-sponsoring legislation with such transparently self-congratulatory, who-could-be-against-that titles be classified as a form of treason.

Published in Foreign Policy, General
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  1. Ricochet Member
    Ricochet
    @

    Not Klaatu They do not need this program to conduct counterterrorism operations.The proponents of this program are really stepping close to that line of outright lying to the American people in the way they frame their arguments.

    Klaatu: Directors of the NSA, Central Intelligence, and National Intelligence (actual intelligence professionals) disagree with you.

    Implying that you simply take their word for it. Of course they would disagree. That misses the point entirely.

    Klaatu quotes another commenter here: The problem is, again, that the telephone metadata program was not authorized by the Patriot Act.

    Klaatu: said a couple of unelected lawyers in robes.

    A fundamental Constitutional requirement, that the Judiciary maintain a check on the Executive Branch, is denigrated as “a couple of unelected (where’s the claim this is a republic now?) lawyers in robes.”

    You are all over the place Klaatu.

    • #31
  2. Ricochet Member
    Ricochet
    @

    In the future Klaatu, you should at least use the commenter’s name when quoting to keep things clear. Or perhaps you’d rather obfuscate?

    • #32
  3. Klaatu Inactive
    Klaatu
    @Klaatu

    Implying that you simply take their word for it. Of course they would disagree. That misses the point entirely.

    On the question of whether this program is necessary to conduct effective counter-terror operations, damn right I do. That is what we pay them for.

    fundamental Constitutional requirement, that the Judiciary maintain a check on the Executive Branch, is denigrated as “a couple of unelected (where’s the claim this is a republic now?) lawyers in robes.”

    You are all over the place Klaatu.

    You should really read the comment being replied to before you comment on the reply. My reading of the Constitution gives the legislature, not the courts a check on the President’s war making powers. I’m with Lincoln on this question,

    “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

    • #33
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