Friday, August 9, 2013

What is Legal and What is Right

In defending the National Security Agency’s collection of Americans’ phone records and emails, proponents have relied heavily on the argument that these actions are legal.

Let us stipulate, for the sake of argument, that the NSA program is utterly consistent with the letter of the law. That doesn’t make it right.

When one delineates between right and wrong, the reflex of today’s relativist zeitgeist is to demand, “Who are you to judge?” The answer, which one wishes were forthcoming from more people, is, “I am (or was) a free citizen, with a God-given capacity, and duty, to make decisions.” That’s not to say every decision you make will be correct, nor is it unrestricted license to judge other people, but no amount of PC browbeating can deprive you of your innate sense of propriety.

And the government collecting telephone and email records of every citizen is just plain wrong.

To be sure, the NSA’s advocates have tried other tacks, such as claiming that only “metadata” are collected (that is, numbers, locations and durations of phone calls, excluding voice content), and that emails are not being read without a warrant. But besides that these claims strain credulity (and polls consistently show Americans do not buy them), they conflate what is permissible with what is possible.

As the Guardian newspaper has meticulously demonstrated, only a few forms and protocols stand between NSA employees and contractors and the content of online communications. While the letter of the law may mandate individualized warrants (and this is in no way clear), reading your emails requires no further infrastructure and would constitute a breach of rules without consequences.

One of the most forceful defenders of the NSA’s actions is Andrew C. McCarthy, a columnist for National Review and PJ Media, whom I have quoted favorably in other contexts.

As a lawyer, McCarthy evinces an occupational propensity to substitute precedent for common sense. To his credit, he recognizes that stressing the program’s legality has made it a tougher sell in the marketplace of ideas. Even so, his enthusiasm for NSA surveillance remains undiminished, and he avers that his side’s foundering is less a failure of philosophy than tactics.

Quoth McCarthy: “most Americans have internalized the ‘expectation of privacy’ contrivance; they now believe the Constitution gives them enforceable privacy rights in the property of others if it reflects on aspects of their personal lives. More importantly, the Fourth Amendment was never the end of any privacy argument anyway. It merely defines the minimal ambit of privacy government must respect.”

McCarthy’s precedent-based mangling of the Fourth Amendment, insisting its proscriptions against unreasonable searches of “persons, houses, papers, and effects” do not apply to phone records, since lawyers have decided those belong to “third parties”; i.e., phone companies, is a prime example of how accomplished legal minds can eschew basic reason.

Besides that telephone companies keep certain records because the government requires them to, such as which towers convey which calls (making it a bit rich for the NSA to turn around and claim those records belong to the companies, thereby justifying their untrammeled collection), the Constitution predates the telephone by almost a century. Do McCarthy and others enraptured by precedent really think the Founders would be okay with NSA surveillance? Honestly? If James Madison had a cell phone, you can bet the Bill of Rights would have been even clearer.

The question comes down to the proper role of government in a free society.

Commonly for Democrats, the government’s role could be Hamlet-sized, but they’d still want it bigger. As more of them object to the NSA’s conduct, however, including Rep. Jared Polis, who co-sponsored a House amendment to rein in the surveillance program, one wonders if their liberty-minded principles will prevail.

Republicans, meanwhile, are in the midst of a well-publicized dust-up between their traditional, security-minded old guard and their younger, libertarian wing, led by Sen. Rand Paul. The outcome of this kerfuffle could be dispositive for the future of the party, if not the nation.

The overarching rationale for NSA surveillance, of course, is to prevent terrorism, and those who support the program insist there are many successes we simply don’t know about (this is reminiscent of jazz fans who tell you to listen to the notes NOT being played).

Some, like New Jersey Governor Chris Christie, have summoned the spectre of 9/11, as though one horrific instance were an evergreen rationale for ubiquitous government surveillance.

But so long as our government collects and monitors every personal thing we write or say, what freedoms are left to defend?

It may be legal, it may even be well-intentioned, but it isn’t right.

Theo Caldwell, host of TV’s Global Command Centre, has been a member of the New York Stock Exchange, the Chicago Board Options Exchange, the American Stock Exchange, and the Kansas City Board of Trade. He can be reached at at