Nothing personal

Politics today is all reflex, at least as it is practiced in public.  Of Technorati’s list of the “biggest blogs,” five of the top ten are political, and four of those define themselves by their hatred of, or worship of, President Bush. The Republicans would have you think George W. Bush is the reincarnation of Winston Churchill and can do no wrong.  The Democrats would have you think W is the reincarnation of Adolf Hitler, and if he isn’t stopped, our republic is doomed.

Into this robotic pissing match comes the revelation this month that the National Security Agency (NSA) is conducting wiretaps of conversations between Americans and foreigners without warrants.  “Clearly constitutional, and in fact the president’s duty!” says the right.  “Clearly unconstitutional, and finally we can impeach Bush!” says the left.

Thanks to kausfiles, I found some enlightenment in this op-ed column by Harvard Law professor Charles Fried that probes the really interesting issue here:

I suppose but do not know — the revelations have been understandably and deliberately vague — that included in what is done is a constant computerized scan of all international electronic communications. (The picture of a G-Man in the basement of an apartment house tapping into a circuit board is certainly inapposite.)  Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.  Moreover, it is likely that at the first, broadest stages of the scan no human being is involved — only computers.

The constitution did not envision this kind of in-between space where database technology can go to gather, sort and flag information–which no human being hears or sees–that could indicate a need for further monitoring. Instead of the already-sterile debate about whether Bush is a hero or a criminal, our media and public figures ought to be consulting experts on privacy and database technology toward the ultimate end of writing new rules, and perhaps a new constitutional amendment to put limits on these not-quite-searches. As Fried asks, “Is a person’s privacy truly violated if his international communications are subject to this kind of impersonal, computerized screening?” Hmm.

The way the issue is framed right now artificially limits the discussion we need to have as a country. As Bush put it, “the enemy is calling somebody and we want to know who they’re calling and why.”  The enemy is someone already identified as part of a jihadist group, and they are calling from a foreign location. So, to many of Bush’s defenders, end of discussion.  Under Article II of the Constitution, as commander-in-chief, he can and must defend the country, and has broad authority to do so.

But, as Mickey Kaus asks, what if there’s “a credible threat of homegrown terrorism?” The loophole that might justify what the NSA is doing now won’t be available. So, clearly, a vigorous and well-informed debate is long overdue.  Since your credit card company has been using such algorhythms to assess your purchase patterns and determine if your credit card was stolen, it is no surprise that government would eventually do the same thing. How far should they be able to go?   

As Professor Fried says, however, it might be difficult to conduct this debate without, in the end, giving away whatever technological advantage the government now has over our enemies:

…it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

 

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