In an interview with Charlie Rose that aired last night, President Obama said that despite his defense of the NSA's recently revealed surveillance programs, he continues to believe "we don't have to sacrifice our freedom in order to achieve security," which he called "a false choice." Still, he said, "that doesn't mean that there are not tradeoffs involved in any given program or any given action that we take." The first example he gave was telling:
All of us make a decision that we go through a whole bunch of security at airports….When we were growing up, that wasn't the case, right? You ran up to the gate five minutes [before your flight]. It's been a while since I went through commercial flying, but I gather the experience is not the same. That's a tradeoff we make….
To say there's a tradeoff doesn't mean somehow that we've abandoned freedom. I don't think anyone says we're no longer free because we have checkpoints at airports.
I don't know about you, but I never made a decision to "go through a whole bunch of security at airports." I do not arrive early, wait in line, repeatedly display my government-issued ID, empty my pockets, take my computer out, cram my toiletries into a Ziploc bag, remove my shoes and belt, and stand with my arms held up in a gesture of surrender while a scanner looks under my clothing becase I like doing those things, or even because I see them as a reasonable price to pay for the extra protection these rituals of obeisance allegedly provide. I do these things because the government makes me do them. I would welcome the option of flying without all the security theater, despite the extra risk that supposedly would entail, and I suspect I am not alone. Maybe if Obama flew commercial once in a while he would understand that travelers do not necessarily comply with the TSA's arbitrary edicts because they view them as sensible precautions well worth the inconvenience and humiliation.
While I would not say "we're no longer free because we have checkpoints at airports," we certainly are less free than we were before. Otherwise it would make no sense to describe this change as a "tradeoff." The government took some of our freedom, and in return it gave us the illusion of security. Many of us doubt the value of this deal. Are we not allowed to complain about a loss of freedom as long as we have some left? Is that what Obama has in mind when he says "we don't have to sacrifice our freedom in order to achieve security"?
Obama's other example of a tradeoff between freedom and security is equally troubling:
We make a tradeoff about drunk driving. We say occasionally there are going to be checkpoints. They may be intrusive.
Again, you and I did not invent DUI checkpoints. Cops did, and the Supreme Court upheld these suspicionless seizures based on the premise that they aim mainly to protect public safety rather than catch criminals (even though they do result in arrests, frequently on charges that have nothing to do with drunk driving). Since I wish the Court had not carved out this exception to the Fourth Amendment and continue to find such roadblocks objectionable, Obama's analogy does not reassure me.
But at least in both of these cases, there was a public debate that weighed the cost in privacy against the benefit in safety. People could lobby Congress to change the rules governing airport security procedures, and they could lobby their state legislators to restrict or ban the use of DUI checkpoints, because—and this point is crucial—they knew these policies existed. That was not true of the NSA's massive phone-record database or its online surveillance until a couple of weeks ago, and the details of how these programs work remain sketchy. Hence this exchange between Charlie Rose and the president:
Rose: Should this be transparent in some way?
Obama: It is transparent. That's why we set up the FISA court.
That would be the secret court established by the Foreign Intelligence Surveillance Act, the decisions of which are shielded from public view. Perhaps sensing the inadequacy of this answer, Obama allowed that "because these are classified programs…the public may not fully know, and that can make the public kinda nervous." To address that problem, Obama said, "I've asked the intelligence committee[s] to…see how much of this we can declassify without further compromising the program[s]." Rose asked Obama in what sense the programs had been compromised by the revelation that they exist, which led to this exchange:
Obama: We could not have carried out the Bin Laden raid if it was on the front page of the papers. I think everybody understands that.
Rose: Of course not, but I don't see what the relevance of that is.
Neither do I, but never mind. Here is the real point:
We're gonna have to find ways where the public has an assurance that there are checks and balances in place, that they have enough information about how we operate that they know their phone calls are not being listened in to, their text messages aren't being monitored, their emails are not being read by some Big Brother somewhere. They've got to feel that confidence…while still preserving our capacity to act against folks who are trying to do us harm.
In other words, as long as these programs were secret, there was no need for the public to know anything about them. But now that people know these programs exist, thanks to an utterly reckless leak that endangered national security in unspecified ways, the government needs to reveal enough additional classified information so that people realize how fanciful their concerns are. Spilling those secrets, since it works to the government's advantage, will not endanger national security.
To give you a sense of the details that Obama thinks the public will find reassuring, he concedes that the NSA's comprehensive collection of Americans' phone records has "enormous potential for abuse," given the sensitive information that can be gleaned from it. Not to worry, however: Before delving into those data, the NSA needs "reasonable, articulable suspicion" that a number is connected to international terrorist activity. The "reasonable suspicion" standard, which allegedly is met every time a New York cop stops and frisks someone, is pretty malleable. In any case, how do we know the NSA is even that careful with our phone records? As Deputy Attorney General David Cole conceded to the House Intelligence Committee today, "We do not have to get separate court approval for each query." So in practice, isn't the NSA free to peruse our phone records at will? No way, says the president: "To do that right now under the program…would be illegal. We would not be allowed to do that."
Ed Krayewski noted the Charlie Rose interview earlier today.