The U.S. Has No Right to Spy on Masses of Regular People in Other Countries

Some kinds of foreign spying are more legitimate than others.

Mr. T in DC/Flickr

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.

We have no moral right to do so. Just as Britain's intelligence agency has no moral right to break into my email account or to maintain a database with my Skype calls.

Or again, yes, of course the NSA should steal some secrets, but that doesn't mean that stealing all secrets is legitimate. Is China formulating a new military posture toward Japan? Stealing that secret is legitimate spy-craft. Is a private company in the Netherlands developing propriety software that gives it an advantage over an American competitor? Stealing that secret is illegitimate. Wittes writes as if, once the NSA exists, any secret it steals is equally legitimate.

That just isn't so.

What's more, the NSA was intended as a foreign surveillance agency. And whether Wittes admits it or not, it has turned its massive resources on the American people. Its misleading, legalistic rhetoric about how it does not "target" Americans doesn't change that fact. To use Wittes's formulation, Congress did not create a signals-intelligence agency so that it could demand metadata from all cell-phone companies on the calls of tens or hundreds of millions of Americans, all the while pretending it remains a foreign intelligence agency.

Just as Scientologists have constructed a very elaborate chain of logic that explains why Tom Cruise is a very special, important person in the history of the universe, national-security statists can explain to you why the NSA is still an exclusively foreign surveillance agency, despite all the time it spends spying on Americans.

The absurdity of it all is apparent to the rest of us.

Jack Shafer helpfully distills an additional reason the NSA's behavior is so objectionable:

At several recent junctures, the U.S. government has publicly sought to expand its power and control over the electronic privacy of its citizens. At each point, the government was roundly foiled by the public and the majority of the political class, which rebuked it. But that has evidently never stopped the government from imposing its will surreptitiously. As the reporting of the New York TimesProPublica, and the Guardian about the National Security Agency’s programs exposed by Edward Snowden showed once again yesterday, when the government really wants something, it can be temporarily denied but rarely foiled.

Read on for examples.

To conclude by responding to Wittes in kind: Duh, that's why we shouldn't permit any government agency an ever-growing budget to operate in secret -- it will wind up co-opting overseers, lying to Congress, misrepresenting the truth before judges, expanding its power until it transgresses against legal and moral norms, and in the case of the NSA, commiting documented Fourth Amendment violations.