Reining In Government Surveillance

"Terrorism" might well be the word one encounters most in the international media. The reaction to recent incidents has been hysterical coupled with demands for an apocalyptic violent response. At this point with the old year ending and the new one about to begin, it would perhaps be fruitful to examine both the reality of terror and an appropriate reaction to whatever transnational threats might be regarded as genuine.

One of America's founding fathers, Benjamin Franklin, once observed that those who would trade their liberty for security will wind up with neither. Franklin understood that once freedoms are bartered away they will never return while complete security is a fiction, an unobtainable objective that will inevitably only be pursued by increasing the unaccountable powers of the police and government.

Make no mistake, terrorism does not go away even if one lives in a police state because those who use terror can always strike at a soft or unprotected target as they did recently in Paris and San Bernardino. Terror is a tool used by the weak against the strong, manifested in our generation by non-state actors who ultimately seek to change governments by using fear as a weapon. All groups that we consider terrorists are political even if they mask their activity in religion or culture as their ultimate intention is to replace an existing regime with themselves.

But, inevitably, it is more complicated than that due to causality. The United States experiences international as opposed to domestic terrorism because it is waging a series of wars in a number of predominantly Muslim nations overseas. So while domestic terrorists seek to subvert the established order by generating fear and uncertainty, foreign and mostly Islamic terrorists are more directly motivated by revenge, even if their leaders are also simultaneously trying to take over or establish regimes in countries in the Middle East.

Either way, the development demands a national security response. So how do we preserve our liberties, most particularly freedom of speech and association, while at the same time dealing with organized gangs seeking to gain control over the instruments of state supplemented by mass murderers wanting revenge for U.S. foreign policy? In spite of the fact that fewer than 45 Americans have been killed by Islamist terror since 9/11 while many more have been killed by fellow citizens with personal or group agendas, the focus of legislation and the government response has been on Islamic militants and domestic mass murderers are generally treated as criminals.

America's response to the international variety of terror has included the passage of two Patriot Acts that have permitted law enforcement to monitor previously protected communications by citizens as well as Military Commissions Act and sections of the Authorization to Use Military Force that allow military tribunals and unlimited detention. The Patriot Act's best publicized initiative was the National Security Agency's electronic mass spying. The program involved electronic espionage directed against both foreign heads of state and millions of Americans and foreigners but it reportedly only produced one actual terrorism lead in over ten years of trying.

Another Patriot Act feature was the National Security Letter, which allowed Federal Bureau of Investigation agents to obtain personal information without having to go through a judge or providing any evidence of probable cause. Under penalty of imprisonment, the recipient of a NSL was not allowed to reveal that he or she had been served with the letter, meaning that the process was both unrestrained by any rule of law and secretive.

Both Patriot Act features have now been modified under public and media pressure resulting from the Edward Snowden revelations, but the government can still access metadata on citizens through the carriers, which are required to retain the information, and it still has a free hand to investigate what it regards as "terrorism cases" with very few restrictions. In effect, government snooping has been outsourced to the communications service providers.

And if the increasing government invasion of privacy is measured by results one has to consider the broadly construed war on terror to be a failure. Groups using the terror tactic are actually proliferating due to other policy failures, most notably the U.S. led western efforts to change regimes in the Middle East, Asia and North Africa which have destroyed existing state structures and have resulted in power vacuums that militants are able to fill. And actual terror attacks in the United States have not been foiled by extra police powers to read our mail and intercept our phone calls. The Boston marathon bombing was not prevented even though useful information was provided to Washington by Russia, intelligence that was not acted upon.

In fact, most terrorist arrests in the United States consist of individuals who have not actually done anything. They are being arrested for what they might do or for voicing opinions that once upon a time might have been considered freedom of speech or association. Indeed, countries like France have already selectively criminalized certain types of speech and associations that they categorize as either hate crimes or threatening national security without any impact whatsoever on hindering the activities of those who choose to employ terror.

Currently spokesmen for the national security community in the United States are complaining about commercially available apps that encrypt communications, blaming both Paris and San Bernardino on the inability to read more private messages. But they fail to make a case that new powers would actually make any difference as the people who use terrorist tactics have been through this drill before and are adept at changing how they make contact and communicate with each other. They are usually at least one step ahead of the authorities.

With a presidential election looming, it is perhaps a good time to carry out a complete rethink of how personal freedom and national security should interact even if no candidate is actually willing to discuss such an issue. In principle, security and liberty are in perpetual conflict but they can coexist under certain conditions where everyone understands the rules and is willing to play by them. Freedom versus security should always come down on the side of freedom and I say that for a reason that might strike many as odd. I believe that a community that does not think the police and government are spying on it will in fact prove an asset in any struggle against those using terror because it will not fear going to the authorities if something suspicious is occurring. Police sources in the United States confirm that local Muslim communities have been very cooperative as long as they do not feel that they are being coerced or spied upon.

To create a new normal for the liberty vs security risk vs gain matrix I would first repeal the Patriot and Military Commission Acts because they are in fact both unconstitutional and counterproductive. Claims that they have prevented numerous terrorist acts generally turn out to be either baseless or a deliberate distortion of developments that favor such analysis. The new laws have accomplished little beyond sustaining huge dysfunctional police-style bureaucracies and denying fundamental liberties to honest citizens that only serve to validate the propaganda coming out of groups like ISIS.

To deal with those using terror tactics I would return to a rule of law. An absence of rule of law or flexibility in administering it inevitably leads to abuse of citizen rights by the government. The police should indeed be able to read my emails or listen in on my phone calls but only after they have gone to a judge for permission to do so and have demonstrated probable cause. The police should also be able to arrest me for cause but they must only be able to hold me for a fixed and brief period of time without filing charges. The FBI ought to be able to conduct sting operations against me if I am suspected of planning a terrorist act but they should not be allowed to introduce a paid informant, as they currently do, to encourage or even enable my act of violence. That used to be referred to as entrapment but now it is standard procedure.

And another aspect of government control of information that is little discussed is the covert and semi-overt attempts by the Administration to influence how developments are perceived by the voters. That essentially requires lying to the public to conceal what is taking place or to create fear that justifies harsh responses. Fearmongering by government sources is currently playing out regarding San Bernardino, coupled with demands for new police powers.