PRISM Politics: The Dog That Didn’t Bark

by John Lawrence

The only genuine surprise surrounding the disclosure of the U.S. government’s PRISM intelligence gathering and data mining is the generally ambivalent response: in the Holmesian canon, the proverbial “dog that didn’t bark.” Indeed, the less-than-shocked reaction represents one of the rare bipartisan events  in a long time, made all the more intriguing by the Republican proclivity to find “scandal” in the most innocuous of circumstances.

Thank goodness Edward Snowden outed himself as the culpable party so that a  subject for political condemnation was available!  Speaker John Boehner, evidently not one to wait for such niceties as a trial or conviction (let alone an indictment!), proclaimed the 29-year old leaker a “traitor” and various other fulminators unloaded on Snowden as well.

Civil libertarians and the press, who understandably are rare cheerleaders for secretive actions by government, are vigorously objecting to the PRISM program.  The ACLU has filed suit.  The New York Times has labeled the collection of metadata “A Threat to Democracy.”

And yet 56% of Americans surveyed by the Washington Post-Pew poll found the intelligence gathering by NSA “acceptable,” and congressional reaction has been notably quiet as well, even from most liberal champions.

 While no one should be indifferent to the potential abuse of data collection, and strong independent and congressional oversight is absolutely required, the ambivalent response from politicians and the public is understandable. 

 Is anybody genuinely surprised to learn that the government is scrutinizing email traffic and online activity?  Hello! This is 2013.  If you haven’t had “the talk” with your kids or friends about “not doing anything online that you wouldn’t want on the front page of the New York Times,” you are seriously delinquent.  Safeway knows when you last bought Cheerios.  Most people know much of their online life is vulnerable both to government and the private sector, and also know there are extremely bad actors out there fully committed to inflicting horrific acts.

Data mining is not exactly a classified activity.  Facebook, Google, Yahoo and others didn’t become multi-billion dollar powerhouses by letting kids send messages around the world for free.  Every major retailer, and lots of minor ones, political campaigns, polling organizations and others have been refining the art of probing peoples’ opinions, interests, behaviors and communications for years.  So, most people may not like it and hit that “unsubscribe” button as fast as they can, but they are about as shocked to discover government tracking of emails as Captain Renault was to discover gambling at Rick’s. 

Most Members of Congress certainly weren’t caught completely flatfooted, though treat assurances from intelligence agencies of thorough Hill  briefings with a grain of salt.  The Huffington Post reported that Administration officials had held “22 briefings for members of Congress,” but that doesn’t means that all (or even most) Members were briefed even once.  Some Members were doubtless briefed several times, while most not at all.  Given the difficulty of controlling Hill leaks, most legislators accept that a limited number of the leaders they select are fully informed of the details whose disclosure could jeopardize national security.

Many of those critiquing the intelligence efforts don’t know what they don’t know, always a dangerous positions to be in when questioning national security policy.  As is evident when public hearings move into closed sessions, a great deal about these intelligence gathering efforts is simply too classified to be discussed in public even generally. Some critics have asked that we only be informed of the methods of information gathering, or the kind of targets: doing so would be disastrous to essential intelligence operations.

While there are plenty of questions to ask (and they will all be asked multiple times), it appears that government snoopers were complying with the Foreign Intelligence Surveillance Act which establishes the parameters for such interceptions.  That compliance includes seeking and receiving approval from a panel of special judges who are charged with ensuring that caution is exercised in the government’s poking around.  Compliance with FISA is hardly a guarantee that no laws were violated or that damage isn’t done to personal privacy by government investigators, and that is why ongoing oversight, even in in executive session, is essential.  

Most people appreciate the catastrophic possibilities of failing to employ state-of-the-art reconnaissance to identify and apprehend (or whatever) would-be perpetrators of evil.  When the trade-off is between a dirty bomb exploding in Times Square and intruding into repeated email traffic to suspect individuals overseas, those charged with defending national security and the Constitution are going to use the powers they have been given under the law, because they will be held accountable if they don’t and catastrophe ensues.  The stakes are too high.  Critics like Maureen Dowd fulminate about “indiscriminate surveillance sweeps” and ascribe congressional acquiescence to “a craven fear of being seen as soft on terrorists,” but they bear no responsibility to keep anyone safe and aren’t held accountable when a perpetrator slips through the law enforcement screen with horrific consequences.

The personalities in this circumstance do not generate the typical anger at officialdom and sympathy for the leaker.  President Obama’s popularity has been unaffected by the weeks of scandalmongering, and I would bet one reason is that people generally like him.  They may not like his policies or his ideology, but with the exception of the birther/closet Muslim/socialist outliers, most Americans like Obama personally, and they likely find it difficult to envision him as the evil architect of 1984-type invasions of privacy.  Certainly his background as a constitutional law professor probably provides some measure of comfort as compared to Richard Nixon or Dick Cheney, whose credentials on respecting the Constitution were somewhat weaker. 

It is difficult to work up a huge amount of sympathy for Mr. Snowden, ensconced in Hong Kong (that bastion of civil liberties) who seems hopelessly naïve, egotistical and irresponsible.  “The NSA has built an infrastructure that allows it to intercept almost everything,” Snowden reportedly told The Guardian. “I can get your emails, passwords, phone records [even] credit cards. I don’t want to live in a society that does these sort of things … I do not want to live in a world where everything I do and say is recorded. That is not something I am willing to support or live under.” Which is undoubtedly why he is hiding out a stone’s throw from the Peoples Republic of China, whose respect for online privacy is considerably less honored than its policy of non-extradition.

For those who grew up in the Vietnam era and hailed the exposure of the Pentagon Papers, it might seem natural to side with Snowden (and the New York Times, for that matter), but the actions are very different.  The Pentagon Papers revealed the systematic lying by the U.S. government on key information used to justify and plan the War in Vietnam.  Snowden acquired and released information concerning how the government gathered and analyzed information, exposing in the process potentially critical sources and methods that put our intelligence gathering and military personnel at risk.  Granted, those who enabled Mr. Snowden in his actions, like Glenn Greenwald of the Guardian, assert that “not a single revelation that we’ve provided to the world that even remotely jeopardizes national security.”  With all due respect to Mr. Greenwald, who I have no doubt is fully briefed on the most clandestine of our national security activities and threats, how much does he really know about what intelligence “jeopardizes national security?”

Interestingly, I have discovered no sympathy for Snowden’s actions among liberals who might be expected to recoil from government snooping.  As with SEAL assassinations, imprisonment of terrorist suspects, drone attacks and a host of other actions many found untenable under pre-9/11 circumstances, traditional intolerance has loosened because of the genuine danger we daily confront.  And invariably, no sooner do critics (sometimes with just cause, as in the case of torture) condemn some aspect of our homeland defense efforts than incidents like the Boston bombing provide a stark reminder that the dangers are not imagined, and that even with sophisticated surveillance, bad actors can slip through the security screen.  Just this week, NSA Chief Gen. Keith Alexander, who also leads the U.S. Cyber Command, told a Senate hearing that interception of phone conversations had foiled “dozens of attacks.”  I have little doubt his statement is accurate.

Does the level of danger require a relaxation of some traditional principles concerning privacy? I am afraid, yes.  The fact that the government is far from alone is utilizing technology to monitor our calls, emails, networking, shopping, and web surfing makes it clear that technology and terrorism together have changed the nature and stakes of the game.  We need to be diligent about civil liberties, but we cannot be ambivalent about civil security.  And that’s why the dog didn’t bark on the PRISM disclosures.