Why the Washington spy scandal isn’t a scandal

As most of you know by now, I’m a card carrying journalist.  It’s my trade, my calling and if I have a strong bias in any direction it is toward the freedom of the press and the openness of American society.

don't talkSo I found myself feeling a little torn a couple of weeks ago when my son Nicholas and I were reading the newspaper over breakfast.

The Adirondack Daily Enterprise had an article under a headline suggesting that there was a scandal in Washington over the Obama administration’s prosecution of “whistleblowers”.

But in the actual article, the employees being investigated — in some cases actively prosecuted — weren’t whistleblowers, they were leakers.

After reading the kinds of secrets that each person had revealed to a journalist, Nicholas said, “This makes sense to me.  Some of these leaks could be pretty dangerous.”

And to my surprise, in many of the instances, I had to agree.

And in the weeks that followed, as news organizations unveiled scandal after scandal — from government surveillance of Associated Press reporters to the massive spy-agency phone database — I found myself similarly conflicted.

The real problem, it seems to me, is not that these prosecutions are underway, or that specific government programs are in place that gather data on American citizens.

The problem is that we’ve stumbled into this post-9/11 war-on-terror era without having a full and reasoned debate over what we’re comfortable doing (and not doing) in the name of national security.

In the panicked months and years after the twin towers fell, Congress authorized all kinds of big changes, from the Patriot Act to the organization of the Homeland Security department to the “hardening” of the US-Canada border.

We all began allowing ourselves to be poked and prodded and scanned and photographed with far more regularity and intrusiveness than ever before in modern American history.

I think a lot of people — liberal Democrats, in particular — expected the Obama administration to roll back or disavow many of those programs.

His campaign rhetoric did appear to distance him significantly from the Bush-era anti-terror stance and he nodded in that direction again during his recent speech rejecting a “boundless global war on terror.”

I think it’s fair to say that the disconnect between Obama’s words and deeds — talking softly and carrying a big Predator drone — may cost him politically.

But this isn’t really about Obama.  It’s about the rest of us.  There’s clearly a need for a much wider debate over the costs and benefits of the “take no chances leave no stone unturned” approach to national security.

Right now, government officials say they want to keep all of our phone records, pretty much forever, in case they ever need to go back and review our past activity.

Are we cool with that?  Are we cool with Homeland Security checkpoints on our rural roads?  And what else would we be cool with if it meant a marginally better chance of safety?

And what should we do about those government employees who leak sensitive information to the press, often motivated by the best intentions?

We need a debate over a journalism “shield” law that would set ground rules for when journalists and their sources are protected and limit prosecutions.

The bottom line is that the post-9/11 war on terror is well into its second decade.  Its time for Congress to assess what that has meant.  Now that the first fears have faded, we need clear-eyed choices about the kind of society we want going forward.

It’s not a scandal.  It’s the essential work of a democracy.

79 Comments on “Why the Washington spy scandal isn’t a scandal”

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  1. Mr. Wakiki says:

    Mr. Wakiki: “If I understand the use of cellphones for the Boston Bombing — I believe after the bomb, once they had locations of suspects, they THEN got the phone records.”

    Mr. Bullard: “Mr Wakiki, To correct your mis-impression, They did NOT know who the bombers were. They had fuzzy photos of two guys they thought were the bombers but didn’t know who they were. The bombers decided to go to NYC to do more bombings and hijacked a car. The driver escaped them at a service station and called the police. The driver said that the hijackers had told him (her?) that they were the bombers. The driver’s cell phone was still in the car and turned on. The police used cell tower data to triangulate where the phone was and went there. That’s when they had the gun battle that killed the older brother.”

    So I say they didn’t know who the bombers were, but were able to locate them using their cellphone info. And you kind of repeat it and classify it as a ‘mis-impression’


    If Nixon was president, well he would have the first dead president (besides Reagan) to lead our country. And instead of physically breaking into a building, he could now do it in the name of ‘security’ using phone records

  2. knuckleheadedliberal says:

    It seems like there is some confusion about the difference between collecting data and wiretapping or eavesdropping. I’m all for 4th Amendment rights but the 4th Amendment, like the 2nd Amendment was written in a different time. Is there a difference between the militia breaking into your home and seizing your correspondence and the postman reading your postcards? If Hansel and Gretel left a trail of stone through the woods should the woodsman be prevented from following the stones because it was their private map home?

  3. jeff says:

    I was concerned shortly after Sept 2001 about an over-reaction and the following years have borne out the need for restraint in light of what has come to pass. In May following that day we were returning on a flight and the 10″ wooden round end “sword” replica with a rope helm we got for our son had to be shipped separately out of concern… I’ve only flown twice since 9/11 and the new body scanning technology shows how ridiculous we’ve taken the concern. All on what if. But yeah, what if. Can we say, to some extent, so what? A boxer takes a few hits in the course of a match. And if I am the one that has to take the hit? Sure, I don’t like the idea but isn’t every day a roll of the dice? We can be indignant when treated inappropriately. Are we more irritable because we know how much can be prevented or “something could have been done?” The collective over-reaction got us in Iraq. Because of it we were not willing to say wait, we can wait longer.

    I read another tack on the information gathering. Is the information available to prove innocence when needed? The author was explaining he was having a hard time proving to his former state of residence that he left the state early enough that he did not have to pay taxes in that state.

    The danger of the data collection is that it is not complete. It is bits and pieces and potentially missing the pieces that would negate what is collected. When the data becomes public, as data was released in the WIKI leaks incident, will innocent people be harmed because an incomplete picture is presented? The data once collected, is at risk of misuse.

  4. Two Cents says:

    ironically, voicing ourselves on this blog, “they” are reading all this.
    now’s my chance to tell them they S*ck.

  5. Paul says:

    Would not be surprised if this is all a ruse and there is no widespread data collection going on. Like I said the government is better at keeping secrets than you suspect.

    But thinking that they are doing it is very powerful. Just look at the reaction here!

    Dave, on the bomber search… Whatever. They called off the “lock down” the guy went into his back yard found the dying kid, the police ran over shot him some more and dragged him out of the boat. Perhaps part of a sophisticated man-hunt tactic?? Like you, I guess I don’t understand the nuance of such a hunt.

  6. Pete Klein says:

    Privacy. I’m not sure we know what we are talking about when we talk about our privacy.
    Did we ever have it? If we did, we began giving it up a long time ago.
    Every time you get a loan or buy insurance of any kind, you give up some of your privacy.
    When you subscribe to a service, you give up privacy.
    Before there were cell phones, if you had a phone, you gave up some privacy. When cell phones came along, you gave up even more because it made it possible for you to be tracked 24/7.
    You go on the Internet and maybe you use a “handle” in place of your real name but that provides only a false sense of privacy.
    What it comes down to is any and all interactions you have with other people chips away at your privacy.
    You want government to be “transparent” but you would prefer not to be transparent – except for all those ways you need to be transparent to get the things you want.
    You don’t like the government having secrets but you want to maintain your own secrets.
    Is there a solution? Probably not – unless you are willing to totally remove yourself from society.
    There is a bit of a joke in all of this. We cheered at the thought of the World Wide Web and now we find ourselves caught in the web.
    Anyone want to go back to 1775, a time when you could escape your past by moving into the land beyond where government and law and order existed, a place where you could reinvent yourself, create a new name and a new life as long as no one from your past should stumble upon the new you?

  7. Dave says:

    Paul if you dont know the differences between calling off a search for a suspect and telling people they can come out of their homes, then there are more than just nuances about what happened that you don’t understand.

  8. Dave says:

    “If Nixon was president, well he would have the first dead president (besides Reagan) to lead our country. And instead of physically breaking into a building, he could now do it in the name of ‘security’ using phone records”

    Nope. No he couldn’t.

    This statement is wrong both legally and technologically.

    First, what Nixon did was illegal then and would be illegal now, no matter what means he used to do it. Recorder, wiretap, super martian ray beam, whatever. And what the NSA is doing would not give him the right to commit the crime in the name of security. Second, no one is eavesdropping or recording phone conversation, they are collecting data. If the difference is hard to understand, I get that, but I’d hope we would all refrain from jumping to conclusions or getting upset about things we don’t have an understanding about.

    As I typed that last sentence I think it dawned on me why this is such a big “thing” for some people. We do tend to fear what we don’t understand, don’t we? And fear is upsetting.

  9. Mr. Wakiki says:

    I thought the Nixon reference was ‘if he was president today’

    I would contend that what the government is doing now and as far back as the Bush years (at least) is breaking the law.

    My guess is that one of the reasons Bush or Obama didn’t want the info leaked is that they didn’t want a chain of events to happen

    1) people to learn their phones were tapped
    2) the phone companies gave up that information willingly, without a court battle (perhaps because the government said it was legal)
    3) people find out they were being listened to.
    4) suspecting they are using that information for more than a potential terrorism attack, that person sued

    5) a court case proves the surveillance was illegal

    I am not a 100 percent sure it is illegal, but with out bringing it out in the open, and argued in court (i.e. held to be a secret).

    To me, in a few ways, it is why gitmo detainees are not given a day in court. There is a chance that the courts would decide they are being detained illegally, just as might be the case with the phones

  10. Paul says:

    Dave, I spoke to a friend of mine who is a police officer that was working on that case in Boston after this all happened. They were all very surprised when they heard that they had gotten him after they ended that lock down. It sounds like they figured that he had gotten away, at least for the short term. They all swarmed from all over once they got that call. But like you say maybe that was part of the plan and even the cops involved didn’t understand how these things work. But as often is the case we can agree to disagree.

  11. Paul says:

    If the administration is so concerned about these leaks then they should fix the problem internally. This idea of going after the leakers and the journalists involved is typical of their MO of blaming others for their own shortcomings. Either way the president isn’t left with much of a legacy if this kind of thing keeps up.

  12. Paul says:

    The legal question is this. The FISA court is authorized by congress to allow unwarranted data collection if they rule there is probable cause. All the administration needs to do is explain what cause they have. Simply explain why many millions of American citizens are suspects? My ears are wide open. If there is cause then the ACLU has no grounds for their case and – problem solved.

  13. mervel says:

    The phone calls are a huge breach, but consider that the NSA is also collecting under one secret program every email sent in the US. Now are they reading them? of course not it is simply a huge data dump.

    However if the government does not like you for whatever reason, they have every email you have sent in the last 7 or 8 years, they have all of your phone calls, they can search this data.

    The entire process is a radically unconstitutional, particularly with the 4th amendment.

    My point about Nixon to consider is that what if we do get a very bad president who has control of the NSA, sole control they are part of the executive branch. I think we are more comfortable because in general we have a reasonable President, but this is not a for sure thing in the future, we don’t know what is going to happen, we have elected men like Nixon before we very likely will do it again. Without the controls in place the true checks and balances, we have no real rights, the country is really not the same. I am astounded that some so called liberals on this board would have any sympathy whatsoever for this sort of breach.

    This is big government, this is what big government means, this is a mutli billion dollar business.

  14. mervel says:

    Why are we doing this? What is the pre-text? A nuclear power who really does have the ability to destroy the US and really does have world domination plans in their heads?

    No no we are giving up our basic rights and what it means to be American because we are afraid of some loser Islamic extremists who might commit some crimes that will kill less people than our milder street gangs.

  15. mervel says:

    Who we are does not mean much until it is tested, our belief in our basic liberty and our rights; flowing not from government according to our constitution, but are inherent to every human being, looks to be pretty shallow.

    We claim we let people die in all of these wars to protect this very thing; yet here we all voluntarily give it up because we are afraid of two weak, pathetic losers from Russia and all of the others like them?

    I don’t care how many attacks have been prevented, NONE of those are worth giving up our rights.

  16. Mr. Wakiki says:

    mervel, I agree with you on all of these.

    The thing that has amazed me the most about this, is how many people say:

    a) I knew they were doing this… or suspected it?
    b) I have not thing to hide
    c) Can’t do anything about it.

    That is to day — have we not only lost our freedom, but are content about it as well?

    And all of that does not address — should the government do it. Do they have the right to this, if they do, why is it a ‘leak?’ If this is a good thing, be upfront about it and say you are doing it.

    I would like to has the card carrying reporter, why letting Americans know their government is monitoring them is a security breech?

  17. mervel says:

    Right I agree.

    Sure I understand keeping secrets about how we gather data on other countries, on individuals who live outside our country who are seeking to damage us.

    But consider that the program that was secret was a program that conducted intense survailence on US citizens, the vast majority of the data collected was on US citizens without a warrant without a probable cause, just randomly gathering data secretly on all US citizens.

    Now are their rotten people among us? Of course indeed there are rotten people among us, but we as a society decided long ago it was more important to protect the rights of all of us than it would be to infringe those rights to try to catch a couple of bad apples.

    It actually is what our whole criminal justice system is about. Who was my defense attorney that argued my case before the NSA was given the right to track my phone calls our your phone calls?

    Its so basic its almost a king has no cloths moment.

  18. knuckleheadedliberal says:

    In the avalanche of fear after 9/11 there were many of us who warned about the repercussions of actions taken by the Bush administration and Congress. We got the Patriot Act ( http://en.wikipedia.org/wiki/USA_PATRIOT_Act ), and warrantless wiretaps ( http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy ), and Gitmo, and extraordinary rendition, and the baloney WMD’s in Iraq, and millions of dead people tens of thousands of maimed soldiers and civilians, more tens of thousands of people with PTSD, $triliions in debt — all the while people who were warning about government overreach were pushed into ‘Free Speech” zones and ignored as “focus groups” and now you want me to get upset that the NSA has metadata on your phone records stored away in some computer?

    How many of you who are so incensed have just given up on the fact that every website you visit puts a cookie on your computer? How many of you download software and click the Accept Terms button without ever reading any of the actual terms of use? You have already sold your privacy soul to the private sector.

    The only reason that this is such a big issue is that large numbers of upper income middle aged white males feel violated in a way that black people, immigrants, people of color, and just plain poor people have had to deal with for their whole lives and for generations before them.

  19. EVH says:

    myown summarized very well the real problem and cause of the situation we now find ourselves in. This same revolving door practice has occurred for many years in many branches of gov’t., most notably the military/industrial/congressional complex and the branches of gov’t that oversee the financial sector (The Treasury, The Federal Reserve, and the SEC in particular). The security apparatus is but the latest branch to have the light shown on it as to how it fleeces the American tax payer, violates our rights, and enriches the select few who ensures it continued growth and overreach.

  20. Marlo Stanfield says:

    If the government were ever to need your phone records or Internet usage as part of a criminal investigation, they can still subpoena the phone company or Internet provider, and if they have cause get a warrant. The way we did it for decades — you suspect someone of wrongdoing, you get a warrant. Instead, now they’re gathering all this data on everyone that they could sift through whenever they want, whether or not there’s any reason to think you’re doing anything wrong. I thought there was a presumption of innocence under our legal system. I realize the 4th Amendment was written before the Internet, but so was the 1st, and the 1st applies to it.

  21. Marlo Stanfield says:

    I think the Founders intent was very clear in the 4th Amendment — the authorities shouldn’t be able to snoop through what you’re doing, reading or possess for no reason. It should apply to Internet activity every bit as much as it applies to papers in your home.

    As for the phone records — theoretically the government could’ve done something similar decades ago, phone calls produced records and bills then, right? Well, what if Nixon had collected the same data on everybody’s incoming and outgoing calls? Can you imagine the uproar there would’ve been? But just because it’s a computer record now and not pieces of paper in an AT&T office it’s different and were supposed to be OK with it?

  22. Marlo Stanfield says:

    I was just reading the Wikipedia page on the history of the 4th Amendment. Apparently one of the big grievances back then was “general warrants” — warrants were already required under English law, but the warrants they used pretty freely in the colonies at the time would let them search anyone and anywhere without much specific reason to suspect a crime or think what they were looking for would be there:

    “Seeing the danger general warrants presented, the Virginia Declaration of Rights (1776) explicitly forbade the use of general warrants. This prohibition became precedent for the Fourth Amendment:[11]

    That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.[12][13]”

    Data gathering, 18th century style!

  23. The Original Larry says:

    The real scandal is that Obama, who was supposed to return the country to sanity after the “excesses” of the Bush administration, has instead doubled down on those “excesses”. It’s easier to be a critic than it is to actually run the show.

  24. knuckleheadedliberal says:

    I think Larry has it right. But at this point the criticism seems to be generated by Republicans who are searching for issues to stick on Obama. Benghazi hasn’t done it, nor has the IRS thing and when it all comes to an end I don’t believe there is much there there on this issue.

    Don’t get me wrong; I am concerned about governmental overreach and privacy, but my gut feeling on this is that the agencies involved have been reeled by Congress during and since the Bush administration. There needs to be a way for there to be more transparency in the process – secrecy is dangerous to democracy – but in the end I don’t think this “scandal” will stick. It’s just another try by the Republicans to keep Obama from getting anything done. And it is working right now. Good job guys. If they wanted to fix the problem they could address the oversight rues to allow more transparency within Congress itself.

  25. mervel says:

    I don’t see this as a scandal politically, it is far more important than that. It will long outlive both Bush and Obama and is more important than the day to day variations in political gotcha. Yes of course these guys are tying to hang it on Obama, but this all started under Bush so they are kind of stuck.

    These agencies don’t usually seed power and once you start to do these sorts of breaches of the constitution you don’t go back easily.

    Big government in general is not about the details of politics it is about seeking and maintaining power, you know have a whole billion dollar business set up to monitor the private lives of US citizens, they will not give those contracts up without a fight. In addition once they have all of this data, would they ever agree to destroy it?

  26. mervel says:

    Finally we are seeing a real use for the US mail general delivery the one last thing the government cannot easily track or read.

  27. Two Cents says:

    consider this:
    On December 15, 2005, Obama gave a speech on the Senate Floor regarding the Patriot Act.

    “…And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document – through library books they’ve read and phone calls they’ve made – this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear their plea, no jury will hear their case. This is just plain wrong. Giving law enforcement the tools they need to investigate suspicious activity is one thing – and it’s the right thing – but doing it without any real oversight seriously jeopardizes the rights of all Americans and the ideals America stands for.”

    then he voted against any of the amendments to change this.

    bush may have started it, but Obama sure got in line pretty fast once he was the man.

    this is where my opinion of Obama has dropped to the mud below my feet.

  28. Two Cents says:

    there is no probability in keeping us 100% safe, so why have we given up 100% of our privacy?

    we are buried beneath the weight of information, which is being confused with knowledge; quantity is being confused with abundance, and wealth with happiness.

    clowns in Washington cannot fix this.

  29. Mervel says:

    I agree.

    Thinking about Brian’s title, I would say he is correct; this is not some sort of political “scandal” compared to some sort of political dirty tricks, or sexual scandals or even some sort of financial scandal, it is not a scandal at all but a fundamental shift and breach of our constitutional rights.

    I wonder how much control Obama even has over the process? He keeps saying that he would be against all of these sorts of things, yet he either does not do anything about them or maybe he can’t?

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