NSA’s spying and America’s courts

On December 27, US federal judge William Pauley ruled that the National Security Agency’s (NSA) collection of millions of Americans’ telephone records is lawful. This is a setback to the American Civil Liberties Union, which challenged the programme that conducts mass surveillance of Americans in addition to their foreign contacts. Judge Pauley deemed the NSA’s techniques to be a ‘counter-punch’ to al Qaeda. He, not unlike President Barack Obama and former US president George W Bush, cited 9/11 as the justification for the NSA’s bulk spying and believes that terrorist attacks have been prevented by these practices. The timing of this ruling came as a bit of a surprise since the president’s hand-picked panel just wrapped up a federal investigation, which affirmed that not one terrorist plot has been thwarted as a result of the NSA’s dubious spying methods.

Judge Pauley’s decision is also in contrast to federal Judge Richard Leon’s ruling a couple of weeks ago, which called the NSA spying programme ‘almost Orwellian’. This ruling voiced serious doubts about the constitutionality of monitoring all phone calls while inferring that the founding fathers of the US ‘would be aghast’ by this.

The five-member advisory panel appointed by Obama recommended significant limits on the NSA, targeting some of its most controversial practices, such as suggesting an end to collection of all Americans’ phone records. That recommendation is largely cosmetic since the government could choose to transfer data storage to private companies by mandating they maintain five years of customer records. In response to the diplomatic fallout from revelations, the panel also recommended that the decision to spy on foreign leaders should be subjected to intense scrutiny with consequences for abuses. There is clear disparity among federal judges and the executive branch of the US government regarding surveillance practices. The final verdict on the NSA’s programmes will inevitably be delayed until an ultimate ruling by the US Supreme Court.

Pressure on the current US administration is not only coming from American and foreign individuals, US technology companies have also become vociferous, likely due in part to real or perceived damage to profitability. Documents provided by Edward Snowden show that the NSA deliberately undermines cryptography by making agreements with companies that allow a back-door into their systems, essentially making security less effective. After profits were threatened, executives from technology companies told Obama that the NSA’s imposition into their networks was harming the US information economy.

Snowden’s motives have been welcomed by some, attacked by others, but the truth is that the unchecked mass surveillance by the NSA needs to be debated in public. Secret oversight by the US Congress and the Foreign Intelligence Surveillance Court has, in effect, resulted in no oversight while the public was kept in the dark. The director of the NSA admitted to having made a misleading statement when he told Congress that the agency does not collect data on millions of Americans. Thanks to Snowden’s revelations, the veil was lifted and this debate is finally in the open. Is the American public willing to sacrifice its constitutional right of privacy for unproven security assurances? In 1759, Benjamin Franklin stated: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” More recently, an intelligence review following the Watergate revelations cautioned: “In an era where the technological capability of government relentlessly increases, we must be wary about the drift toward ‘Big Brother Government’.” The Church committee stressed that “the potential for abuse is awesome”. That was in 1976.

Published in The Express Tribune, December 30^th, 2013.

Like Opinion & Editorial on Facebook, follow @ETOpEd on Twitter to receive all updates on all our daily pieces.