In 1948, Harry Truman flip-flopped. After decades of holding racial biases, he decided to support the civil rights movement against Jim Crow laws. Truman's shift was as much cold political calculation as anything else. The path to 270 electoral college votes ran through northern cities with large African American populations and a few states in the Deep South. The strategy worked. He carried Georgia, Florida, North Carolina, and Texas just as the Chicago Daily Tribune went to press with "Dewey Defeats Truman."
There was a foreign policy angle to Truman's civil rights awakening, too. In the ideological battle pitting democracy against communism, the Soviet Union began to churn out propaganda saying that Jim Crow proved America's inability to live up to its own fundamental values on human rights.
Collecting Americans' phone and Internet records must meet the absolute highest bar of public consent. It's a test the Obama administration is failing.
The argument was effective, argues Caley Robertson of Colby University: segregation was frustrating the United States' attempts to export democracy during the Cold War. In other words, Jim Crow was damaging America's soft power, defined by Harvard professor Joseph Nye as a country's ability to achieve its aims through attraction rather than coercion.
Which brings us to PRISM, the NSA program that collects meta-data from Americans' telephone and online communications.
I am a former Department of Defense intelligence analyst. I have never used PRISM, and do not know if it existed during my tenure. However, I have used NSA databases, and became aware of two ironclad truths about the agency: First, its data is a critical intelligence tool; and second, that access to databases by non-NSA intelligence analysts is highly controlled. It's like buying drugs (so I'm told): you need "a guy" on the inside who passes you the goods in the shadows, then disavows any connection to you.
In addition to being useful and tightly controlled, PRISM is, of course, legal by the letter of the law. Its existence is primarily justified by the "business records" clause in the PATRIOT Act, and President Obama has argued that the legislation has been authorized by "bipartisan majorities repeatedly," and that "it's important to understand your duly elected representatives have been consistently informed on exactly what we're doing." Salvation from excessive government snooping would seem to lie at the ballot box.
Fair enough. But in the immediate wake of September 11, Americans questioned little of what their government would do to keep them safe. Just four months after the attacks in January 2002, Gallup reported that fully half of Americans would support anti-terrorism measures even if they violated civil liberties.
Times have changed. As soon as August 2003, Gallup found just 29 percent of Americans were willing to sacrifice civil liberties for security. By 2009, a CBS poll concluded only 41 percent of Americans had even heard or read about the PATRIOT Act, and 45 percent of those believed the law endangered their civil liberties. A Washington Post poll from April 2013--after the Boston marathon attacks but before PRISM's disclosure-- found 48 percent of Americans feared the government would go too far in compromising constitutional rights to investigate terrorism. And following the Edward Snowden leaks, 58 percent were against the government collecting phone records. Not a total reversal, but certainly trending in one direction.
This shift has existed in a vacuum of public debate. Prior to the PRISM leaks, the last time domestic government surveillance made headlines was in very late 2005 and early 2006, following revelations that the Bush administration was wiretapping Americans without a warrant. Despite the scandal, the PATRIOT Act was quickly reauthorized by March 2006.
The Bush administration did announce the end of warrantless wiretapping in 2007, and he moved the program under jurisdiction of the FISA court , a panel of Supreme Court-appointed judges who approve domestic surveillance requests. To call the FISA court a rubber stamp is an understatement. This year, it has rejected a grand total of 11 warrant requests out of--wait for it--33,996 applications since the Carter administration.
The PATRIOT Act's reauthorization wouldn't come up again until 2009. By then, public uproar over warrantless wiretapping had long since receded, and the year's debate played out as a relatively quite inside-baseball scuffle between civil liberties groups and the Hill. When the law came up for its next presidential signature in 2011, it was done quietly by autopen--a device that imitates Obama's John Hancock--from France.
Shifting attitudes and quiet reauthorization flies in the face of the standard the president has set for himself. In a 2009 speech at the National Archives, Obama emphasized the importance of the consent of the governed in security affairs,
"I believe with every fiber of my being that in the long run we cannot keep this country safe unless we enlist the power of our most fundamental values... My administration will make all information available to the American people so that they can make informed judgments and hold us accountable."
The president's inability to live up to this ideal is particularly jarring as he defends PRISM. Following the leaks, he's said he is pushing the intelligence community to release what it can, and rightly insists that the NSA is not listening in on Americans' phone calls. Those are helpful steps, but should have been raised during the National Archives speech just months into his administration, not six months into his second term.
Director of National Intelligence James Clapper continues to argue that disclosure of collection methods will give America's enemies a "'playbook' to avoid detection." That's thin gruel. First, America's enemies are already aware of the NSA's extensive electronic surveillance capabilities. That's why Osama Bin Laden and deceased al Qaeda in Iraq leader Abu Musab al Zarqawi used a complex network of couriers rather than electronic communications. It's typical operational security of truly dangerous operatives. Second, Obama stated as recently as late May that the threat from al Qaeda's core operatives has decreased significantly, shifting to less deadly cells scattered throughout the Middle East and North Africa.
The lack of public debate, shifting attitudes towards civil liberties, insufficient disclosure, and a decreasing terrorist threat demands that collecting Americans' phone and Internet records must meet the absolute highest bar of public consent. It's a test the Obama administration is failing.
This brings us back to Harry Truman and Jim Crow. Even though PRISM is technically legal, the lack of recent public debate and support for aggressive domestic collection is hurting America's soft power.
The evidence is rolling in. The China Daily, an English-language mouthpiece for the Communist Party, is having a field day, pointing out America's hypocrisy as the Soviet Union did with Jim Crow. Chinese dissident artist Ai Wei Wei made the link explicitly, saying "In the Soviet Union before, in China today, and even in the U.S., officials always think what they do is necessary... but the lesson that people should learn from history is the need to limit state power."
Even America's allies are uneasy, at best. German Chancellor Angela Merkel grew up in the East German police state and expressed diplomatic "surprise" at the NSA's activities. She vowed to raise the issue with Obama at this week's G8 meetings. The Italian data protection commissioner said the program would "not be legal" in his country. British Foreign Minister William Hague came under fire in Parliament for his government's participation.
If Americans supported these programs, our adversaries and allies would have no argument. As it is, the next time the United States asks others for help in tracking terrorists, it's more likely than not that they will question Washington's motives.
It's not too late. The PATRIOT Act is up for reauthorization in 2015. In the context of a diminished threat, the White House still has time to push the public debate on still-hidden, controversial intelligence strategies (while safeguarding specific sources and methods). Further, the administration should seek to empower the FISA court. Rather that defer to the Supreme Court to appoint its panel of judges, it would be better to have Senate-confirmable justices serving limited terms.
President Obama has said Americans can't have 100 percent security and 100 percent privacy. But you can have an honest public debate about that allows Americans to legitimately decide where to strike that balance. It's both the right thing to do and American foreign policy demands it.
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