The Protect America Act

The Senate has passed a reauthorization of PAA that makes virtually everything about the famous illegal wiretapping program by NSA (the one Congress was screaming about not so long ago) legal and closes all options for prosecuting anyone over the past illegalities. The House has hung up the Act in Congress for now because of the telecom immunity provision but there is no real question that the other provisions of the Protect America Act will become law in the near future.

The PAA makes it legal for the government to listen in to any conversation without a warrant as long as one of the participants is physically outside the Unites States.

Anything that deals with the power of the government over civilians is an exercise of balancing opposing needs and considerations, it should also be about caution and narrow tailoring.

There are two discussions that should be going on when we are discussing the expansion of government powers and I am furious that only one of them is happening.

The first discussion is the balancing of the competing interests of security and civil rights. This is very much a subjective decision. It depends on how severe you think the threat to our safety is and how severe the threat to our privacy. It depends on how much you value security when compared to privacy. There is definitely room for debate and argument and analysis in this question but eventually it pretty much comes down to a gut decision. I don’t mind people debating or screaming at each other about whether they value safety or privacy and whether the other side is advocating the destruction of our lives or our society. However, this debate is not the only debate we should be having!

The second question, in many ways the more important question, is, once you accept that the balance between security and privacy is X (fill in your own preferred position here, or your enemies) the question is how to go about satisfying to the desired maximum the safety consideration while safeguarding our rights as much as possible. Once we decide we need to do Y to be safe by all means lets set about accomplishing the objective of Y. (Ex: NSA needs to be able to place a wiretap on people they think might be working for Al Queda within 24 hours, lets figure out a process that lets them do that legally.) However, what reason is there not to go about doing Y in such a way as to minimize any damage to our rights? (Ex: Warrants after the fact. Notification after the fact. Briefing of Congress at certain intervals, etc.) Why is the question presented by the Bush administration and the Republicans the binary one of not valuing or accomplishing Y and writing a blank check? No matter what Y is (unless it is unfettered absolute power) there is room for oversight and checks.

There can be reasonable disagreement on the first question. I can see how people might have different preferences on the balance between security and civil rights and I can acknowledge these people as well intentioned reasonable individuals without frothing at the mouth. People who are unwilling to discuss and work on the second question and shut down all discussion of it by yelling “We’re all going to die! Y is important! Don’t you understand!” make me froth at the mouth.

I can think of no justifiable reason to not work on including oversight and safeguards into any new rights we want to give the government. I cannot think of any motivation for the people who oppose such except a naked desire to seize and abuse power.

No one is interested in us not being safe. But blank checks are not the best ways of achieving that. There is even reason to believe that blank checks make for less effective law enforcement/intelligence gathering.

And that’s why the PAA is a lousy law, not only because it allows wiretapping of a certain kind but because it gives us no way to make sure the NSA is complying with PAA.

There is also a distinct possibility that the PAA is unconstitutional on the merits, but that’s a subject for another post.