Civil libertarians on the right and the left have latched onto the report from the Privacy and Civil Liberties Oversight Board into the NSA’s program that collects data on phone calls. The NSA's collection of phone records under Section 215 of the Patriot Act "implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value," the report argued. "As a result, the board recommends that the government end the program."
Those who dislike the NSA and its program have started screaming that it’s illegal, just like they have said all along. The fact that the Board approved this report on a vote of 3-2 makes that a bit less certain. Moreover, the two dissenters served in the administration of George W. Bush, so they have the interests of the security community in mind.
Those who defend the program argue that the Board went beyond its brief in declaring the program illegal. Congressman Mike Rogers (R-MI) chairman of the House intelligence committee, sent out an email today that read in part, "In 38 times over the past seven years, 17 federal judges have examined this issue and found the telephone metadata program to be legal, concluding this program complies with both the statutory text and with the U.S. Constitution. I don't believe the Board should go outside its expertise to opine on the effectiveness of counterterrorism programs."
I happen to think the congressman is onto something here. Rather than worry about whether the Board went too far or whether the program is illegal or unconstitutional, let’s start with whether or not it works.
The term “has shown only limited value” is a Beltway manner of saying, “ain’t worth spit.” It leaves enough wiggle room in case, by some miracle, the program does find a bad guy. However, since it hasn’t (or they’d point to the case or cases where it did), the Board is OK with shutting it down.
When it comes to fighting terrorism, we have done a pretty lousy job at fighting smart. We’re good at sending the marines everywhere, and drone attacks are safe and satisfying if your blood lust is up. But when it comes to saying “that’s a waste of resources,” America has a lousy record. That’s why we’re building another air craft carrier and more submarines when our enemies are hiding in the mountains of Pakistan.
The first question is to ask is “will this work?” If the answer is “no,” then we need not go any further. When you’re looking for a needle in a haystack, a strategy that makes the haystack bigger (as the gathering of all the phone data does) is not going to work. Indeed, it will prove counterproductive. That being the case, who cares if it’s legal? We shouldn’t bother with it anyway.
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