An Overreach for the NSA’s Critics

by Charles C. W. Cooke
What it does abroad isn’t the problem.

Of all the sharp instruments that have in recent years sliced open the conservative movement’s belly and left it fighting for unifying stitches, the most pronounced perhaps has been the question of the National Security Agency and its regimen of surveillance. Since Edward Snowden’s explosive revelations blew suddenly into the news last year, right-leaning types have sought desperately to reconcile their instinctive respect for privacy with their considered interest in security and the law. Often, they have failed to do so. At times, the fissure has even become ugly, yielding a series of set-tos between the traditionalist and libertarian wings that have inspired reports of a much-desired civil war.

Alas, those championing unity may soon find themselves reaching for the bourbon, for, having considered 46 different recommendations, the president will this week decide what shape his NSA-reform program will take, and thus in whose wounds the salt will be rubbed. Whatever he elects to do, one thing seems certain: The agency will be less powerful afterward than it was before. Among the alterations that are reportedly in the cards are requiring the FBI to obtain judicial permission before it may share the NSA’s data, establishing a privacy advocate at FISA, and, most essentially, removing the federal government’s power to store telephone records directly. Providing that these moves do not merely constitute distractions or sleight of hand, they will be welcome and timely — not perfect, no, but a relief for those of us who feared that the security state was destined to dig in and metastasize, thus proving the old maxim that lost liberty is never recovered.

And yet, for all the optimism inherent in the promise of change, there are small alarm bells ringing — for, making its way into a handful of news outlets is the attendant rumor that the president may decide to go one step too far, extending globally the protections of the Privacy Act of 1974 and according to foreigners bulwarks to which they have no claim. This, to put it as lightly as possible, would be a disaster.

In its story on the matter, the Wall Street Journal suggested that such a move would represent

a significant shift in U.S. posture that wasn’t proposed seriously until the uproar overseas in response to disclosures by Mr. Snowden, which suggested that the NSA had built a global surveillance operation that regularly scooped up communications of citizens of countries around the world, including friendly ones.

Since the affair surfaced, I have happily counted myself among the NSA’s staunchest critics. But here I must break ranks with my fellow malcontents and cry foul. The reason that there had previously been no “serious” suggestion that reforming America’s domestic program would necessitate changing its foreign-based regime is that such a proposal is exorbitant — the product of fluffy one-world types who haven’t so much taken a libertarian exception to national-security overreach as folded the revelations into a toxic Weltanschauung that perceives America to be a global bully and force for ill, all alleged threats to the peace to be overblown if not deserved, and the very act of spying as contemptible. If President Obama indulges this instinct, he will be abdicating his most elemental responsibility as the chief executive of the national government: to protect Americans from those who would do them harm.

My criticisms of the NSA’s conduct have been wide-ranging. The sheer scale of its domestic surveillance is deeply disturbing in a country with a constitutional protection against unreasonable searches and seizures, as is the indiscriminate manner in which it has collected information. It is one thing for authorities boasting discrete permission to track individuals who are suspected of particular crimes. It is quite another for the state to turn all Americans into de facto suspects, effectively issuing unconstitutional “writs of assistance” that turn the concept of warrants on its head. Questions have abounded, too, as to whether the NSA has been operating outside of its mission and abusing the terms of its charter; as to whether the director of national intelligence, James Clapper, brazenly lied to Congress when a senator asked him about domestic surveillance; and as to whether President Obama has any real control over his own executive branch. The claim that metadata do not reveal personal information has always been risible, as has the idea that abuse and mistakes don’t matter if they yield only a few victims.

The root of the problem, in other words, has been that an agency that is tasked with spying overseas has turned its attention to the homeland. It has not been that that agency has been doing the job with which it was tasked. The NSA isn’t just allowed to spy broadly outside of the United States; that is precisely what it should be doing. The legal and moral questions that critics have posed to the NSA make sense only within the United States.

Proponents of the distinction that I have just established are typically accused of believing that “Americans are more important than other people,” or that “only Americans have privacy rights.” (It is rather unlikely that I, not being an American, would believe this.) The Declaration of Independence is thrown at us, too. After all, if all men are created equal, then why should one distinguish between victims of spying depending on their citizenship?

To the casual ear, I suspect that all of these inquiries sound rather sensible. But they do not survive sustained attention. Putting the moral questions to one side for a moment, it is indisputable that only two sets of people — American citizens and those within the country’s borders — are entitled to the legal protection of the Constitution, which serves a charter of and check on the American government and as nothing else. This isn’t to say that the principles contained within the Constitution and the Declaration are not universal. Mostly, they are. But, much as I believe that my British family has a fundamental human right to free speech, they are afforded no recourse by the highest law in America. To suggest or to insinuate otherwise is, frankly, to be wrong, and I might enjoin those citing the Declaration to look a few lines down, at another part: “That to secure these rights, Governments are instituted among Men . . . ”

The moral cases are different, too. It should be self-evident that a foreign power’s violating your privacy and your own government’s doing so are by no means the same thing. For the vast majority of people, the practical importance of one’s secrets being obtained by one’s own government considerably outweigh the importance of their being obtained by a foreign power. The American federal government can and might do all sorts of immediate harm to me; the government of China, on the other hand, cannot. If a rogue official in the United States takes exception to my politics, he can make my life hell: inviting the government to track my whereabouts, ordering frivolous arrests, tying me up in endless audits and frivolous bureaucracy, and even sending a SWAT team to my house. If the Chinese politburo finds me objectionable (and I certainly hope it does), it can do very little of practical importance. Moreover, and this I think is the key point, if China tries to actually hurt me, I have distance, borders, and the American government’s considerable arsenal standing in the way. If someone at home tries to hurt me, I have little individual recourse.

For as long as the world features international borders, it will be one thing for federal guns and listening apparatus to be pointing outward — protecting me from foreign foes — and quite another for them to be directed inward. The world has shrunk somewhat since the Founders’ time, but the validity of their belief that the domestic use of troops and force presents a threat to liberty has not. Thankfully, the internationally peculiar Anglo-American expectation that the national government may deploy troops anywhere it wishes outside of its borders but must not use them at home remains in legal force courtesy of the Posse Comitatus Act and in moral force courtesy of an ongoing American distaste for government intrusion. There is no reason that we shouldn’t demand that our sleuths hew to the same principle. (While we’re at it, we might also see fit to push back against the increasingly common sight of hybrid soldier-cops and military-grade SWAT teams, as documented by Radley Balko in his brilliant book Rise of the Warrior Cop, thus ensuring that we do not allow in a domestic standing army by another name.)

As a general rule, I suspect that those complaining about the NSA’s foreign surveillance regime are as vexed by the activities that it enables as by the spying itself. Some of these activities, I also abhor. I am with Kevin D. Williamson on the question of the extrajudicial killing of American citizens, with Conor Friedersdorf in worrying about the extent of the drone war and the long-term consequences of the mistakes that are being made, and with the libertarians in feeling concerned about the scale of the security state in the post-9/11 world. Nevertheless, the problems with these activities remain the problems with these activities — not the auxiliary work that supports them. Ugly as it is to acknowledge, this is a dangerous world, and the lights of perverted science are only making it more so.

For the foreseeable future, spying will remain an indispensable part of the national defense. Reforms are necessary, yes. And I will happily man the barricades to make the case for American liberty. But behind my protest sign there will be another, declaring in no uncertain terms that this is not the time to sing Kumbaya and to erase from our thinking the Treaty of Westphalia, and, too, that there really is no need to hobble ourselves abroad as we correct our excesses at home.

— Charles C. W. Cooke is a staff writer at National Review.

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