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The NSA Non-Scandal

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At a time when the Constitution is being trampled and the Attorney General has an unmitigated inability to tell the truth it is easy to see the most recent disclosures about NSA's collection of metadata from Verizon and possibly other carriers as yet another scandal involving the invasion of personal liberties. Fortunately, a least in this case, it is possible to come to the defense of the government.

Following the 9/11 terrorist attacks on the U.S. it became clear that while terrorists may be embracing an eighth century ideology, they were also utilizing 21st century technologies to plan and execute their operations. Among these terrorists and other potential adversaries have made widespread use of cell phones and the Internet. To ignore these communications as a vital intelligence source to defend the nation would be imprudent and irresponsible.

In the early days after 9/11 the National Security Agency (NSA) was directed by the Bush White House to rapidly scale up its collection against the new threats posed by potential terrorist targets for their operations, with the Authorization for the Use of Military Force (AUMF) Act utilized as the basis for such activities. The Terrorist Surveillance Program (TSP) and others have now produced a decade of litigation against NSA as well as commercial carriers such as Verizon and others. Most recently the Supreme Court has upheld the legitimacy of these efforts and the 2008 FISA Amendments Act in Clapper v. Amnesty.

Unlike the TSP, the current controversy does not involve any intercept of communications, and the government's actions have substantial legislative and judicial oversight. Almost all legal authorities agree that in this evolving area the defense of the nation requires a balance between privacy and security, and here the balance is more than fair.

For decades the law has distinguished between the actual content of communications, such as telephone calls and e-mail, and the collateral data about these communications, which is presently being referred to as metadata. The landmark case of Katz v. United States (1967) made clear the judicial requirements for the intercept of communications and left standing any requirement for the collection of the collateral data, then called "pen register" data. Some two decades later Title III of the Electronic Communications Privacy Act (1986) established the requirement for a court order to obtain this type of data, either under 18 USC 3123, or under the Foreign Intelligence Surveillance Act of 1978 (50 USC 1801). This is precisely what the Government did in this case.

Here the FISA Court gets far too little credit for the critical role they perform. Established in the wake of earlier scandals and disclosures of intelligence abuses this court provides the type of experienced judicial oversight needed so that the Intelligence Community could continue to operate effectively while meeting the essential concerns of civil libertarians. Just recently the FISA Court celebrated its 35th Anniversary, and for this period has in fact been staffed by some of the most distinguished judges in the nation.

Claims that the FISA Court is a "rubber stamp" for the government do enormous disservice to a highly respected and effective judicial body. While it is a fact that a high percentage of the applications brought to the FISA Court are ultimately approved, this is largely a function of the fact the FBI and other applicants simply won't bring an application to this court unless and until their paperwork is in perfect order.

It is also the case that this type of surveillance was properly briefed to both the Senate and House Intelligence Committees. Senator Dianne Feinstein and Congressman Mike Rogers, the two committee chairs, have both appeared on national media to support the proposition that their respective oversight committees where properly briefed on these classified activities. Unlike the current IRS scandal and the others that have justifiably embroiled the Obama Administration, both the court and the Congress were all on board and there is no scandal at all.

So what is the real rub here? At one extreme and some civil libertarians decry any secret surveillance program or data collection effort done for national security purposes as a violation of constitutionally protected privacy rights, and overall having a chilling effect on free speech. In a perfect world it would be easy to go along with this concept. Unfortunately it isn't and the nation needs to deal effectively with threats from terrorists and others using modern communications media. Here NSA and the FBI have done their job and the application to the FISA Court has been reviewed and approved by some of the best judges in the nation. This is what the civil libertarians have demanded in the past and have gotten their wish. In a time of seemingly unending scandals, this just isn't one.