The NSA story and the role of government

For my own benefit as much as anyone else's, I'd like to recap where we are right now on this whole story about what the NSA is doing. I feel overwhelmed with noise these days and would like to think that its possible to deal with the facts we have now in order to have a rational discussion about the issues at hand - silly me ;-)

First of all, we know that NSA is collecting metadata on phone calls. It seems to me that what David Simon said about that rings true - its analogous to what law enforcement has always done, but bigger in scope due to advances in technology.

I found this description by Mark Ambinder about what's happening to be really helpful for us non-techies.

One official likened the NSA's collection authority to a van full of sealed boxes that are delivered to the agency. A court order, similar to the one revealed by the Guardian, permits the transfer of custody of the "boxes." But the NSA needs something else, a specific purpose or investigation, in order to open a particular box. The chairman of the Senate intelligence committee, Sen. Dianne Feinstein, said the standard was "a reasonable, articulatable" suspicion, but did not go into details.

Legally, the government can ask companies for some of these records under a provision of the PATRIOT Act called the "business records provision." Initially, it did so without court cognizance. Now, the FISC signs off on every request.

Armed with what amounts to a rubber stamp court order, however, the NSA can collect and store trillions of bytes of electromagnetic detritus shaken off by American citizens. In the government's eyes, the data is simply moving from one place to another. It does not become, in the government's eyes, relevant or protected in any way unless and until it is subject to analysis. Analysis requires that second order.

And the government insists that the rules allowing the NSA or the FBI to analyze anything relating to U.S. persons or corporations are strict, bright-line, and are regularly scrutinized to ensure that innocents don't get caught up in the mix. The specifics, however, remain classified, as do the oversight mechanisms in place.

So the first question we have to ask ourselves is whether or not we're comfortable with that van full of sealed boxes being delivered to the government. Beyond how commonplace this kind of thing is with law enforcement, what Simon was pointing out in his article is that the real issue is the rules/oversight that govern whether or not they can open up one of those boxes.  Basically the FBI has to present the FISA court with a justification for that and the Intelligence Committee in the Senate is briefed on when/why they do so. This is one of the main ways that President Obama's implementation of all this differs from what Bush wanted to do.

The question here is whether or not that is enough oversight; does the public at large need to be involved? Answering that question means knowing whether or not providing the public with more information about it would neutralize the effectiveness of the program by broadcasting its workings to the people its targeted to catch.

I'll admit that I don't know the answer to that question. If there is more we can learn without jeopardizing the effort - then we should demand that information. But if opening it up to public scrutiny would pose a problem, then we have to grapple with the question the President posed about the balance between transparency and security.

As you know, I've been writing a lot here about trust. Beyond these questions I'm posing, I think this issue of transparency vs security raises a critical question about the very structure of our government. The other day I put that question in a tweet:

If you don't trust Congress' oversight AND you don't trust the FISA court, then we have MUCH bigger problems that NSA surveillance.
— Smartypants (@Smartypants32) June 8, 2013

(Of course that should be "than NSA surveillance," but there's no editing on twitter)

I'm not suggesting that we should trust congress or the courts. I'm merely saying that if we don't - we have MUCH bigger problems. As I've pointed out recently, our government was designed to be a "representative democracy," - not a majority rule. By setting things up that way, our founders entrusted certain decisions to those we elected to represent us. That needs to be balanced with an informed public that doesn't simply depend on blind trust.

I believe that a lot of the questions being raised these days are pushing at that balance. Overall the tone of many of the recent so-called "scandals" boils down to an attempt to suggest that the government is over-reaching. While the Republicans have joined on the bandwagon in order to discredit President Obama, it is the libertarian wing of our political spectrum that is gaining a foothold here. In a venomous screed today about President Obama, Maureen Dowd (who used to be counted among those who call themselves liberals) demonstrates how she's joining that bandwagon.

The president insists that his trellis of surveillance programs is “under very strict supervision by all three branches of government.” That is not particularly comforting given that the federal government so rarely does anything properly.

As I've said before, I understand the mindset that recognizes that there are those who have abused their power as representatives of the people. We need to be vigilant in carrying out our duties as citizens. But one of the main tenants of liberalism is a belief in the idea that robust government is necessary to reign in the overreach of capitalism. At least that's one of the main reasons I'm a liberal in the first place. The last thing I want to do is join in with Republican-based libertarianism in trashing the role of government. As a matter of fact, I'd say that advancing the role of good government is the most potent way liberals have of making progress on our goals.