The Shoe That Didn't Bark

Over the weekend, the fabled other shoe seemed to be poised to drop in the NSA kerfuffle.

CNET ran a story that suggested that Rep. Nadler was told that any NSA prole could listen on any American at any time without a warrant.

Turns out... not so much.  They based in on an ambiguous exchange, and Nadler kind of swatted that down.  They have withdrawn the story.

Then we had the Snowden chat.  In it, Snowden seems to say that the problem isn't that there was a policy on spying on Americans without a warrant.  Rather there was a possibility to do this because the technology was there.  All some NSA guy had to do was flip a switch (or something) and he could access someone's phone calls.

Really disturbing.

And illegal.

And what's more, Snowden notes that The restrictions against this are policy based, not technically based, and can change at any time. Additionally, audits are cursory, incomplete, and easily fooled by fake justifications.      Put another way, if an NSA agent wanted to break the law and access personal information, they could.

Put another another way, people who break the law can break the law.

And this is where Snowden (and Greenwald) show their hand.  For them, the mere possibility that the government can break the law means that the government will break the law.  That's kind of the starting point for libertarianism, that the state is more or less a de facto criminal intrusion on our liberties.

So, the NSA has the capability to listen in on anyone's phone calls, but it's illegal to do so.

Let's tease this out: the Armed Forces could kill and enslave most Americans.

The Atomic Energy Commission could discharge nuclear waste in an American city.

The CDC could release Ebola into the drinking water.

Those capabilities all exist, but they are illegal.

But if, as Snowden states, the barriers are merely "policy based", which is another word for laws then they are insufficient.  As he says later " it’s important to understand that policy protection is no protection - policy is a one-way ratchet that only loosens."

Really?  It only loosens?  The Church Commission didn't exist?  We didn't stop torturing people?  We didn't stop throwing people in Gitmo?

And torture is a good example.  The problem with torture under Bush is precisely that it was policy.  I'm not some naif that thinks that American soldiers never tortured people in certain situations, some even just for the pure sadistic catharsis of it.  But it was only policy once before - during the Filipino War - and was subsequently outlawed.  When Bush and Cheney made it policy they implicated us all in a shameful episode in our history.

That is now what's happening here.  Here, the policy is "don't listen in on Americans without a FISA warrant."  But it's possible that someone could do this illegally via the technology that the NSA has.  This is similar to Snowden's fear that a Delta team is going to show up surrounding his bed and snuff him out.  Hey, they have the capability.

Now Snowden and Greenwald remain correct that greater safeguards are needed because you don't want everything to come down to who might occupy the White House.  And if this whole kerfuffle does lead to some reduction in oversight powers and some increase in oversight, that will be for the best.

But this isn't a breathless expose of tyranny or government powers run amok.  This is about a legal program that has the potential for abuse because it's secret.

Which is true of a lot of things.