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The Edward Snowden Case: More Than a Crime Story

July 11, 2013 08:20:31 am

By Timothy J. McNulty

The cat-and-mouse Edward Snowden/National Security Agency (NSA) scandal has fueled the summertime news cycle with a high tech—though drawn-out— version of a police chase.

Reporters flocked to Moscow’s Sheremetyevo Airport   to search for the contractor who revealed secret NSA surveillance activities, and booked seats on flights to countries where Snowden might find refuge from the long arm of the United States government—only to discover he was a no-show. 

Meanwhile, the diplomatic posturing of Latin American officials who feel the U.S. is bullying them into refusing asylum to Snowden added a side drama to media coverage of the actual crime—assuming that the courts will judge his actions a crime.

But the core issues have been more difficult to pursue.

While revealing that the NSA was able to scoop up all the calls from a willing Verizon network, the crime story for the last two weeks has overshadowed the larger issues:

  • What information has the NSA has absorbed into its electronic storage facilities?
  • How long it will keep such "metadata?"
  • Will Americans have the right to know more about what the government is doing in the name of national security?

Only in the last few days has the media, specifically The New York Times and The Wall Street Journal, revealed more of the underpinnings of the operations that Snowden described.

On Sunday, The Times reported, “In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects,”  but also others who may harm national security.

Since 2007, according to The Times, the 11-member Foreign Intelligence Surveillance Court, known as the FISA court, “has quietly become almost a parallel Supreme Court” that alone decides what amount of surveillance of Americans and others is permissible.

On Monday, The Wall Street Journal followed up with its own front page story that claimed the FISA court has expanded the definition of “relevant” data to include essentially everything the intelligence agencies want to collect. Officials have defended their actions, saying that they are not recording individual conversations or text messages. 

They claim that there are safeguards in place.

That may be true at the moment. But in her blog early last month, New Yorker writer Jane Mayer warned about the government’s use of metadata. She quoted Susan Landau, a security expert and author of Surveillance or Security on the impact of metadata. 

"The public doesn't understand, it's much more intrusive than content," Landau told Mayer. “(Learning) who you call and who they call.  If you can track that, you know exactly what is happening—you don't need the content."

These reports seem to buttress earlier warnings by two members of the Senate Intelligence Committee, Ron Wyden of Oregon and Mark Udall of Colorado.

The Journal noted that both men “have argued repeatedly that a "secret interpretation" of the Patriot Act   is being used to collect the electronic data of almost all Americans.

The notion of a secret court allowing the government to follow secret rules is mind-boggling.  Interpretations of other court decisions that could extend the intrusiveness of the state into the private life of every citizen seem impossible to justify, whatever the goal and the marginal risk. 

I suspect that most Americans are only vaguely aware of the amount of information the NSA and other intelligence agencies are collecting to track potential terrorists.  Even as more becomes known, I also suspect that most Americans would not complain if some of that information includes their own records and movements.

Editors Note: See also Brett Roberts TCR Viewpoint “Who’s Protecting Criminal Records?”

That governments go beyond their own laws to seek ever greater control is neither surprising nor new.

David T.Z. Mindich, a professor of media studies, journalism and digital arts at Saint Michael’s College, in  an op-ed column for the Times, described how Secretary of War Edwin M. Stanton in 1862 received permission from President Abraham Lincoln to control the country's telegraph lines, and then used that power to impose censorship.

The difficulty, of course, is that some secrets need to be kept.  

There is a legitimate reason to work the "dark side," as former Vice President Dick Cheney insisted, just as Stanton argued that the government must have control of the telegraph traffic to ensure a Union victory.

The Snowden affair has made it painfully clear that the Obama administration— and the Bush administration before it—have stretched our thinking about national security law and how the courts should deal with state secrets.

But the job of the media is to throw light on such subjects, especially where the government may be overreaching, violating the Fourth Amendment of the Bill of Rights and threatening civil liberties.  

Given the secret nature of the FISA court and the NSA programs, it’s unfair to blame journalists for not having all the details.

But reporters need to pursue the story with members of Congress and the Internet providers who are cooperating in the wholesale collection of information about Americans.

It is not enough to accept the "trust us" language of administration officials, or the nice round number of “50 terrorist plots” they claim were stopped or prevented by these intrusions.  How about releasing one or two or three good examples, and let them be tested to see if the metadata collection is really warranted?

There is a proposal to appoint an adversarial attorney who would look at the government's presentations before the FISA court—something that should have been in place from the beginning. 

It is never enough to have just sincere government assurances; the role of a free press is to challenge and test those official explanations

“Eternal vigilance is the price of liberty”—a saying often attributed to Thomas Jefferson but in fact widely used by many thinkers in the 18th and 19th centuries—should be in every reporter’s DNA.

Every administration says it is working in the best interests of the United States. What is becoming increasingly clear, however, is that leaders will often justify anything they wish to accomplish by drafting opinions, often in secret, about how to apply the law.

It is also clear that vigilance is needed, even if we think government intentions are benign. 

What seems benign may seem like a violation of privacy when the secret attention of the state is focused on you or me.

Timothy J. McNulty, a veteran journalist whose career in national and foreign news coverage includes roles as both a war correspondent and White House correspondent, is a lecturer on the journalism faculty at Medill Northwestern University. He welcomes comments from readers.

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