There is a lot of confusion in political discussions concerning the transmittal of information from National Security contract employee Edward Snowden to the foreign press and the Chinese. And that is why it is so shameful that media hounds in Congress have exploited you to attract attention to themselves.
There are four issues involved in this controversy and it's time to have an adult conversation about them rather than allow yourself to fall victim to the inflammatory rhetoric of the ignorant and the egomaniacs. Here they are.
First is the question of whether the NSA is engaged in illegal or unconstitutional acts.
Second is the question of whether We The People want them to engage in those actions even if legal and constitutional.
Third is what should be our response to what Snowden did.
And fourth is the question of who we can trust with their hands on the reins of power.
1. IS THE NSA ENGAGED IN ILLEGAL OR UNCONSTITUTIONAL SPYING?
The facts of what the NSA is doing or planning to do are still coming out. And I'm sure that the information we have thus far has come from sources that have provided ample reason to distrust the answers we have. For example Justin Amash has called the Congressional testimony of the director of national security James Clapper "perjured". Clapper you will recall said that the government does not "wittingly" collect and store data on American citizens. We now know this is not true but that is not the end of the inquiry.
We have not only been told that the NSA does indeed collect and store data but that their actions are both legal and constitutional.
Of course media addicts in Congress immediately ran to the floor of the house, onto Twitter and Facebook and back to their constituents and claimed that American's civil liberties were under attack and that the actions of the NSA are violations of the Fourth Amendment.
Well, are they?
As I said, the facts are still developing, but what we now know they are doing may be well within the boundaries of the constitution.
For example, you surely know that what you share on Facebook, Tweet on Twitter, comment about on other websites or do in the social media world is not private. Of course neither is your list of friends, place of employment, where you vacation, live, what you read, what you 'like' private. As I've tried to warn people for years, even your Google searches are public.
When you use a search engine, a phone app or most other online programs you are subject to their terms of service and privacy. Most of the services which are free mine data about your likes, your interests and the products you buy and then they compile that data into demographics and sell all of that information to advertisers. Nobody should be shocked by this.
But what is most important for people to understand is that the areas of your life which are protected by the Fourth Amendment are only those areas which the Supreme Court has not yet declared to be outside your "expectation of privacy."
Did you know that police need no warrant to search your property so long as they stay outside of the "curtilege"? Courts have approved the placement of hidden cameras on your property without a warrant. Spying from overhead is okay under some circumstances and we should all by now have heard of how police can use drug sniffing dogs to effectively search the contents of your car, your home, your suitcase and even your mail.
When you place a letter in the mailbox there is no prohibition against someone logging all of the places from which and too which you send mail.
But when it comes to establishing a "pen register", that is tracking the phone numbers of all calls made, or the address and subject line of emails, other laws may be triggered which would require a probable cause warrant. The government's argument that no warrant is required is far from a new concept. The Wall Street Journal covered this topic over five years ago and it was debated quite thoroughly.
I have been warning you about these intrusions over and over for many years. (just go to my topics list and search under Web/Tech and Civil Liberty)
The legal question which needs to be answered is whether the NSA complied with the warrant requirements, whether a FISA warrant was enough or whether the data mining was in fact done illegally. Until we know more it is reckless to declare their actions unconstitutional.
2. LEGAL OR NOT DO WE WANT THE GOVERNMENT TO HAVE THE RIGHT TO SPY ON US?
Why this discussion is confusing is in part because the media hounds in politics want you to be confused. Rather than taking the measured approach to discussing if the acts are legal or not, they want to ratchet up the discussion and your emotions by urging that we DON'T want the government to have access to our phone records, whether they listen to the calls or not. Is that true?
I for one was against many of the provisions of the Patriot Act at a time when that was not a very popular position among my fellow Republicans. But that act was debated, passed, renewed and extended by Congress over the past eleven years and it is the law of the land.
But more specifically the question now isn't whether we are living in a world governed by the Patriot Act or not (we are) but whether we really want the government to have access to things like call patterns. Think about that for a minute.
Let's assume that the Feds bust a terrorist before he can act. They acquire his cell phone. Sure they could go back and look at all of his incoming and outgoing calls, but what if the database could also allow them to see that he has been calling a number frequently that has also shown up in another state that was being called frequently by another known terrorist? Might the entire cell be discovered? Might people who would otherwise not be on the radar be linked together? Might the DHS or the FBI or the CIA be able to make a stronger case against them and prevent a terrorist plot from being executed?
How would that ever take place unless call patterns of all phones were in the database to be searched, linked and investigated?
How about the same type information except it comes from emails, websites and URL's that could be linked? With millions of websites out there might one or two obscure ones be the meeting place or the educational source for terrorists? How would the information obtained from one captured terrorist be of any use unless patterns could be developed? And by the way, since Google, Yahoo and all the others mine and sell this data to advertisers, what would keep the government from accessing it anyway?
Maybe we need to have a debate over just how far we are willing to let the government go in spying on such things. It might be time to have an adult conversation about such things. But now is not the time to let the passions of the moment destroy our national security abilities without careful consideration.
I have not softened on the Patriot Act or my dedication to the Constitution. That's why I would prefer to tone down the rhetoric and have a reasoned discussion.
3. IS IT RIGHT TO CALL SNOWDEN A HERO?
It is not right to call Snowden, the NSA leaker, a hero or to call for him to be exempted from prosecution. Those who do are reckless and dangerous and untrustworthy.
He had a high security clearance, stole top secret documents and carried them to a foreign country where he is now working with the Chinese. If worrying about borrowing money from the Chinese is a concern, delivering top secret documents to them and openly disclosing that the USA is hacking their computers shouldn't earn a traitor immunity.
Snowden is probably lying about many things, including his level of authority within the national security ranks. But some in Congress like Thomas Massie say that he deserves no prosecution? Why? Because he told us that the NSA was doing precisely what they had already told us they were doing years ago? That's not only silly but proof that a little recent enthusiasm is no replacement for years of study and active participation.
4. WHO CAN/SHOULD WE TRUST?
Our founders were very clear. We were supposed to choose our elected officials from among the most trusted citizens. In the old days candidates did not campaign for themselves, it was beneath them. They did not lust for power, they considered their role as humble servants of the public trust.
But today people lust for power, prestige and a paycheck and so they jump up and claim to be the new leader, the new face the one who can lead us to the promised land. In too many cases, our president being one, we know little about these men and women.
Many times they do not come from our community experience. They have not proven their trustworthiness over time. They are not tested. There ideas not public knowledge, their world view scripted into a campaign instead of vetted by public discussion.
The problem isn't that we need no government, the problem is that we have no trust in the men and women who hold the power of government.
Do you know people who you would trust to watch your children, stay with your spouse, hold your wallet, live in your house without going through your drawers and cabinets, and computer files?
Unfortunately too many of the people we elect to office we would not want training our children, yet we let them run the Department of Education. We look the other way when they drive away from campaign events in the company of other women, their wives at home, and we are expected to ignore their philandering.
How many politicians need the job? What might they do in order to keep it? Would you trust them with your money? You do when you give them the power to tax you and take your money from you.
And now these same unvetted, untrustworthy people have access to our homes, our computer files and our financial records. Why?
The answer is simple. It is our fault. We have not been engaged enough. We have not been insistent enough. We have not gone out and recruited the best, most trustworthy people to run for office and then supported them.
Instead we have become the audience for a grand show under the big top. We are suckers. We fall for campaign trickery, we buy into the politics of personal destruction, we have become the audience clinging to the cage and cheering for defeat at Thunderdome.
The problem isn't that our great nation has developed the technology to protect us from our enemies. The problem is that we no longer trust those in whose hands we have placed that technology. And that is our fault, and we can fix it.
President Obama recently said something that came close to the truth, but I doubt that he saw the truth in it. He spoke to the graduating class at Ohio State and said this:
Unfortunately, you've grown up hearing voices that incessantly warn of government as nothing more than some separate, sinister entity that's at the root of all our problems. Some of these same voices also do their best to gum up the works. They'll warn that tyranny always lurking just around the corner. You should reject these voices. Because what they suggest is that our brave, and creative, and unique experiment in self-rule is somehow just a sham with which we can't be trusted.
We have never been a people who place all our faith in government to solve our problems. We shouldn't want to. But we don't think the government is the source of all our problems, either. Because we understand that this democracy is ours. And as citizens, we understand that it's not about what America can do for us, it's about what can be done by us, together, through the hard and frustrating but absolutely necessary work of self-government. And class of 2013, you have to be involved in that process.
You are right Mr. President, we need to reject the voices that call our for the end of our form of government, the voices of the anti-government libertarians and the anarchists. You are right Mr. President that it is wrong for them to say that our brave and creative and unique experiment in self-rule is just a sham. But you are also right Mr. President that we no longer trust those who are now viewed as part of a sinister entity, our Congress, our Senate, many of our judiciary and those in your administration.
And you couldn't be more right Mr. President when you say that the work of self-government is hard, and frustrating but that it is absolutely necessary and that those in your audience at Ohio State and in mine here at the BluegrassBulletin have to be involved in that process.
We need to look around. We need to go back and be willing to admit that we made some bad choices and we have to be willing to look for better people, more trusted, tested and rational to hold the reins of power.
I think what you said to that class Mr. President as they graduated from college and headed out into the world, is that they are now adults and that it is now time for the adults to have a conversation about our future instead of the chicken-littles, the media hounds and those with a seething hatred for the institutions and traditions that make us the greatest nation in the history of the world.