Is the whole NSA scandal just much ado about nothing? Over at Lawfare, Benjamin Wittes offers five thoughts in defense of the NSA, and I find myself disagreeing already at number one. Here's his first point in full (emphasis in original):
The NSA is an intelligence agency, and intelligence agencies collect intelligence. The NSA collects a huge amount of data. It spies on other countries and their leaders. It tries to make sense of the material it collects using data-analytic techniques. It breaks encryption systems that its potential targets use to protect their communications. It develops relationships with private companies that can provide it data. And it engages in activity that is illegal in the countries against which it operates. As we used to say in grade school, “Duh!” That’s why we have a signals intelligence agency.
Critics of the agency, at home and abroad, trot out many of these facts as damning indictments. Brazil and Mexico and our European allies are outraged -- or pretend to be -- that we spy on them. Our domestic conversation is laced with fear of the sheer size of NSA collection, as though data volume is what makes Big Brother big. But the criticism is silly. Of course, the agency collects a large volume of material. An intelligence agency is not a think tank or a university. It doesn’t just read newspapers, collect what’s public and analyze what such data say. ”We steal secrets,” former NSA and CIA director Michael Hayden put it in the excellent movie about Wikileaks that used this arresting phrase as its title. This is what spy agencies do. The NSA is good at it -- very good at it. I, for one, think that’s a great thing.
The form of this argument is strange. The Bush Administration had a torture program. Torture programs torture people. Duh! That's why we had a torture program. Declaring that something exists for a particular purpose does not prove that the activity undertaken is moral or legal, or that the purpose is legitimate.
Don't get me wrong. I am not suggesting that the United States should abandon collecting foreign intelligence entirely. What I am suggesting is that certain kinds of international spying are morally permissible and legitimate, while others are immoral and illegitimate. Drawing a coherent line is extremely difficult, and beyond my abilities, but I can give examples of what I regard as clearly legitimate and what is clearly illegitimate. An example of spying to which I don't object: intercepting intra-regime communications in Syria. An example of spying that strikes me as contrary to American ideals: dragnet spying on the private communications of every German citizen. The NSA was created in an era when technological limitations ensured that foreign spying would be directed, for the most part, at foreign governments. Now we have the ability to accumulate massive data on masses of individuals in liberal democracies.