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Should the National Security Agency spy on all Americans to prevent terrorism?

You can click this article without worrying about landing on a blacklist; after all, traffic on surveillance stories is spiking this week, with dramatic developments in France, Germany, and right here at home. In reaction to the massacre at Charlie Hebdo, the French Parliament is preparing to very publicly approve comprehensive domestic surveillance on the same level practiced in America since 9/11. This week German Chancellor Angela Merkel, who once wagged a finger at the American N.S.A. and President Obama for “spying on friends,” was revealed to be spying on her own friends…at the behest of the N.S.A. and Obama. Allies like Austria are outraged; her domestic opponents are calling her “treasonous.” And if all that wasn’t enough, yesterday a U.S. Appeals Court decided that the N.S.A. program that collects so-called “metadata” is illegal and unsupported by the Patriot Act. Obama has signaled his support for a bipartisan bill (the USA Freedom Act) that would replace the current program with a less comprehensive program, but Senator Mitch McConnell opposes him and insists on extending both the program and the Patriot Act-based rationale for it.

Ever heard of a ticking time bomb? N.S.A. defenders sure have; it’s their most-cited scenario, e.g. “If a time bomb is ticking, we don’t have time to get caught in bureaucratic red tape…” As in turns out, America’s bulk data collection program has its own ticking time bomb, set for two weeks from today. The part of the Patriot Act that ostensibly justifies the program will expire on June 1, and that’s why a judge decreed that the program must be either replaced or re-authorized in clearer language by May 22.

Two weeks?! That’s plenty of time. Let’s put our feet up, calm down here, and ask if N.S.A.-managed comprehensive domestic surveillance is 1) something Americans want, 2) Constitutional, 3) the best way to protect our country against terrorists.

The first question is directly relevant to this blog’s theme as well as something N.S.A. defenders never fail to bring up. Americans don’t mind surveillance, we hear. They put all their information on Facebook anyway, we hear. If comprehensive surveillance were put to a nationwide vote, would it pass?

Ask your gay friends: we shouldn’t be voting on our rights. That’s another way of saying there’s no separating the first question from the second. Is metadata compilation legal? Just because an appeals court said it’s not? One can imagine this going all the way to the Supreme Court. And what will the lawyers say then?

Opponents of the program will cite the 14th amendment’s generally understood and upheld “right to privacy.” They may also note the 4th amendment’s prohibition against illegal searches. Contravening two amendments may not quite be the same thing as abridging our rights, but it’s pretty close. The program’s opponents will also question why the program needs to override the 1978 FISA statutes, and why, even in the ticking time-bomb scenario, the N.S.A. can’t later go back and get a (legally required) judge’s approval.

The N.S.A.’s defenders will claim that the “right to privacy” doesn’t extend this far, though it’s unlikely they’ll spend much time on that. They’ll say that freedom was never free – there are always limits in the name of security. They’ll probably cite “fire in a crowded theater” again – a Supreme Court asterisk whose harm has only been exceeded by the “Bush v. Gore” asterisk (“this decision is limited to the present circumstances only” – nope, been cited and re-confirmed in dozens of Supreme Court cases since). The defenders will say we have no idea how many lives the program has saved, because they won’t tell us.

Ultimately, the first and second questions will get wrapped up in the third – the program’s efficacy. This is where 21st century technology meets 20th century rationalizations. Sure, 20 years ago, you could just tell Americans to take your word for it when it came to the brilliance of any government program or business model – who could check? With every passing year of this century, stockholders are moving more of their money away from businesses who refuse to maintain websites that show what the business is doing. Why should us 99% trust the 1%? And why should the government be any different?

The question that Ruth Bader Ginsburg or whoever ultimately needs to ask the government’s lawyers is: please give an example of something that the government CANNOT do in the name of preventing the next 9/11. Can we kill a person? Don’t act shocked, because we already have done that, in Guantanamo. How about injuring or killing a small child, like my adorable 2-year-old in the above photo? Again, don’t act shocked. You might be surprised what tunnels we’re already going down; you might not be happy to learn what we would threaten someone with, if we thought they had information that could stop the next 9/11. And further, what they would threaten us with. I think we realized in the case of Walter Scott, who was caught on video fleeing and unarmed, and gunned down in cold blood, that there are some things that police shouldn’t be allowed to do. We need to establish that principle with the N.S.A. defenders before we can talk about anything else.

It’s true that we can’t have total privacy or total transparency. Right now, though, we seem to have the worst of both worlds – ordinary people are made to have all the transparency and our public, tax-funded institutions maintain all the privacy.

So far, ordinary people have not really been pushed to their limits, but that could change. The Sony hack was “something new under the sun,” as many said, and the entertainment press is still dutifully reporting hacked emails (just the other day, they reported director David O. Russell’s sexist comments about Amy Adams). Some of Americans’ bemusement surely relates to the fact that everyone in Hollywood is basically in the upper 1%. What happens when a hostile enemy cyber-hacks Wal-Mart middle-level employees’ emails? What about Home Depot’s? Walgreen’s? General Motors’? It may seem a lot less funny at that point.

What happens when everyone’s salary is published online? That day is coming a lot sooner than you think. What about your address? Heck, why do you close your front door, ever, if privacy means so little to you? What happens when the casual remarks you made in your teenage texts gets compiled and yellow-flagged because you said certain words (perhaps “I want to punch her in the face” or “our President is an idiot”)? What happens when you can’t get a job because of those yellow flags? After all, every business pays taxes. What’s to stop the government from offering tax discounts to businesses without any yellow-flagged employees?

Many of my students shrug their shoulders: well, the government is going to do it anyway, so why fight it? I tell them I’m glad Ronald Reagan didn’t have that attitude. Reagan didn’t shrug his shoulders in 1979 and say “I guess there’s no way to change government policy – oh well.” Many of my students don’t see much potential abuse. I remind them: Iraq war. Katrina. 2008 meltdown. The BP oil spill. Benghazi. You trust these guys – under either major party’s President – why again?

And that’s where we finally come around to this blog’s central theme again. Though I’m happy to hear about bipartisan effort to change N.S.A. policy, I don’t entirely trust it. The Democrats and Republicans have repeatedly proven themselves at the behest of certain corporations and a national-security apparatus that are sometimes at odds with, and other times contemptuous of, ordinary Americans. Compared to them, I maintain a greater faith in greater America. Eventually, I trust ordinary people to see that trading freedom for security is a false trade. Eventually, I trust ordinary Americans to wake up the way the Scottish people did this week, voting their hearts instead of feeling stuck with a two-party oligopoly. When they do, I dearly hope that our populist candidate will campaign on and insist upon a government that can get itself out of this secret-filled tunnel and admit what it’s doing in the light of day.

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