A rational, pragmatic look at NSA surveillance, Part II

As intelligence officials testify on Capitol Hill today that more than 50 terrorist plots and activities were halted by the NSA surveillance programs, it seems clear that a case is being made that the anti-terror program works well.

Strong arguments have also been made by pundits that the collection of phone numbers involved in billions of phone calls is not an invasion of privacy or a violation of the Fourth Amendment. It is a discomforting but necessary effort in the post-9/11 world. And as long it is not abused – no evidence of malfeasance has surfaced – it will likely continue unabated for many years.

Conservative columnist Charles Krauthammer, a regular on Fox News, parts company with many of his Republican allies on this issue. In his latest piece for The Washington Post, Krauthammer compares the NSA activities to the Postal Service making a record of information on the outside of an envelope – a power that was granted in a 1978 federal court case.

Here is Krauthammer’s astute explanation:

“The National Security Agency’s recording of U.S. phone data … records who is calling whom – the outside of the envelope, as it were. The content of the conversation, however is like the letter inside the envelope. It may not be opened without a court order.

“The constitutional basis for this is simple: The Fourth Amendment protects against “unreasonable searches and seizures” and there is no reasonable expectation of privacy for what’s written on an envelope. It’s dropped in a public mailbox, read by workers at the collection center and read once again by the letter carrier. It’s already openly shared, much as your phone records are shared with, recorded by, and (e)mailed back to you by a third party, namely the phone company.”

Tom Friedman, a centrist columnist for the New York Times, picks up the argument from there, making the case that the liberals and libertarians opposed to the surveillance program seem to believe that “the only thing we have to fear is government intrusion in our lives, not the intrusion of those who gather in secret cells in Yemen, Afghanistan and Pakistan and plot how to topple our tallest buildings or bring down U.S. airliners with bombs planted inside underwear, tennis shoes or computer printers.”

Friedman wrote that the NSA’s goal is prevent another 9/11 and failure in that effort would have far-reaching implications in the war on terror that would extend beyond the loss of blood and treasure. Here’s his take:

“Yes, I worry about potential government abuse of privacy from a program designed to prevent another 9/11 — abuse that, so far, does not appear to have happened. But I worry even more about another 9/11. That is, I worry about something that’s already happened once — that was staggeringly costly — and that terrorists aspire to repeat.

“I worry about that even more, not because I don’t care about civil liberties, but because what I cherish most about America is our open society, and I believe that if there is one more 9/11 — or worse, an attack involving nuclear material — it could lead to the end of the open society as we know it. If there were another 9/11, I fear that 99 percent of Americans would tell their members of Congress: “Do whatever you need to do to, privacy be damned, just make sure this does not happen again.” That is what I fear most.”