NSA Ruling Reminds Us That Sacrificing Civil Liberties in the Name of National Security Is a Bipartisan Impulse
The U.S. Court of Appeals for the 9th Circuit yesterday ruled that the National Security Agency’s bulk collection of Americans’ telephone records was illegal and probably unconstitutional. For Democrats who see Donald Trump as an unprecedented threat because of his disregard for the Constitution, the decision is a useful reminder that sacrificing civil liberties on the altar of national security is a bipartisan rite.
The NSA program, which was revealed by former NSA contractor Edward Snowden in 2013, indiscriminately collected telephone “metadata”—indicating who was calling whom and how long they talked—about millions of Americans for years. The program, which the USA FREEDOM Act ended in 2015, began under George W. Bush but continued during Barack Obama’s administration, which concealed its existence, then speciously defended its legality and usefulness.
“The administration has now lost all credibility,” The New York Times editorialized after Snowden’s revelations. “Mr. Obama is proving the truism that the executive will use any power it is given and very likely abuse it.”
James Clapper, the Air Force general whom Obama appointed as director of national intelligence, epitomized the administration’s dishonesty by blatantly lying to a Senate committee about the NSA’s data collection practices three months before the phone record database was revealed, then repeatedly lying about lying. In his latest incarnation, Clapper is a vociferous Trump critic who blames Russia for the election of a president he despises as a man “whose first instincts are to twist and distort truth to his advantage.”
Further scrambling the conventional understanding of which major party is more concerned about civil liberties, Obama tried to prosecute Snowden, while Trump, who in 2013 called Snowden “a traitor” who “should be executed,” last month suggested he might pardon the NSA whistleblower. Another interesting point Democrats might prefer to overlook: While questioning the constitutionality of the NSA’s metadata dragnet, the 9th Circuit cites Supreme Court Justice Neil Gorsuch, a Trump nominee who is a more reliable defender of the Fourth Amendment than the judge Obama wanted to appoint.
I am not for a moment suggesting that Trump’s new respect for Snowden, which is probably driven by his pique at “deep state” foes like Clapper, or his choice of Gorsuch, which was based on what he thought conservatives wanted, reflects civil libertarian principles (or any principles at all). But as this case shows, Trump’s polarizing personality tends to obscure the deeper problem of powers that tempt presidents to violate our rights, regardless of their personal traits, avowed principles, or party affiliation.
The prosecution that led to the 2nd Circuit’s decision involved four Somali immigrants who were convicted in 2013 of sending money to the terrorist group al-Shabab. While the ruling does not affect those convictions, it addresses the legality of the NSA’s phone record database, which supposedly played a crucial role in the case.
I say “supposedly” because that is what federal officials claimed while defending the NSA’s program. Then-FBI Deputy Director Sean Joyce, for example, told a congressional committee the database generated a tip that allowed the bureau to reopen its investigation of the suspected al-Shabab supporters. The 2nd Circuit rightly di
Article from Latest – Reason.com