This is one of those issues which is too important for partisanship, ad hominem attacks, or sloganeering. It’s not an exaggeration to say that the wrong answer in either direction can result in the loss of the freedom to debate issues like this.
Currently the news is full of two manifestations of this: the actions of the National Security Agency (NSA) on wiretaps after 9/11 and Google’s opposition to a subpoena of certain of its records. The Google case – at the moment – is about child pornography and not national security in the traditional sense but the implications of a decision either way will affect both security and privacy.
I think it’s easy to eliminate the extremes. If government has unlimited access to all information at the whim of whomever government happens to be at the moment, personal freedom and the ability to control government will disappear. On the other hand, if there is absolute protection for privacy over any means of communication – telephone, Internet, snail mail – both terrorists and common criminals will find it much too easy to operate. We are faced with a real and determined threat. We do have to protect ourselves from it.
So what’s the middle ground?
It’s actually where we’ve been for much (but not all) of America’s history. First on wiretaps: usually a warrant has been required to tap domestic calls. Getting a warrant requires demonstrating probable cause to think evidence of a crime – or a potential crime – will be uncovered. During peacetime this has served us well – not perfectly but well – and both allowed investigators to uncover crime and most of us to have a reasonable expectation of privacy.
During times of declared war, this requirement and many other civil liberties have often been ignored or suspended. Congress sort of declared war on terror after 9/11 and the President has interpreted this “sort of” declaration as an authorization to act as we often have while at war. This is by no means an open-shut legal or practical argument. Traditionally we give wide latitude to the President on national security but, in return, we expect the President to have good reason for acting outside normal limits.
If there are good reasons for warrantless tapping – if, for example, the current procedures, which do allow for getting a warrant after the fact, are too slow or the courts are full of spies – then the President should explain what the actual reasons are. The explanation itself may tell bad guys more than they ought to know but a democratic society needs to hear and judge the explanation. We do need to listen to his explanation without partisanship. There has been no evidence that the President used these powers for anything other than “the war on terror”, no Watergate-like spying on domestic opponents. We need to consider if the current emergency did justify and does justify warrantless tapping.
Congress needs to decide how much at war we are; this isn’t easy but it needs to be done. We haven’t declared a war since World War II. We’ve certainly fought many since. Congress has essentially abdicated its war-making authority and just reserved the right to criticize after the fact. That doesn’t work any more than Presidential assumption of unlimited powers.
The President needs to be clear on the need. The Congress needs to be clear on the authority. There can’t be an absolute right to privacy. There can’t be unfettered government snooping.
As for the side issue of the NSA asking phone companies for the record of who called known terrorist numbers, that one does have an easy answer. They ought to be able to do that without a warrant. In fact law enforcement at all levels asks for these records and phone companies, as far as I know, always comply. Anyone who reads detective novels knows how important phone records are. Since – under normal circumstance – we require the establishment of probable cause to get a warrant to actually LISTEN in on a phone call, we do have to allow the gathering of the information necessary – who’s calling the bad guys – in order to establish probable cause.
The “Google issue” is even more complex and deserves its own post – but also deserves serious, non-partisan thought.