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Wednesday, 01 February 2006 00:00

The difference between precaution and fear

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By Lee Shelton

I found Scott McLeod’s column, “Living in Fear....” , in theJan. 18 issue of the Smoky Mountain News very thought provoking. Following are some other thoughts on the subject from a contra-view point.

We live — and have lived — in a dangerous world, but we take much, including our safety, for granted. Civil wars are waged, diseases inflict, and anarchy grows across the globe, but these events are somewhere else. There are millions of people living in refugee camps, where they have been for years. Ethnic cleansing has taken place recently, and arguably continues.

A large number of Americans have insulated themselves from much of the noise that, if left turned up, would be disconcerting. We build our cocoons for our personal and our family’s protection. We take comfort from the structure of our days, and the sense of control and normalcy it affords. We shop for therapy. Americans are — just behind the Japanese — the most ethnocentric people on the earth.

Less than 7 percent of native born adult U.S. citizens have taken a trip out of the country that required a passport, and then it is to a relatively safe area for sightseeing and pleasure. The world population is projected to increase from the approximate 6.4 billion currently to just over 9 billion in 2050. One hundred percent of the net increase will be in developing countries. The highest growth rates over the next four decades will be in West Asia (what is commonly called The Middle East). Asia will be the center of world commerce by 2030.

Around 2050, the white non-Hispanic population in the U.S. will become the minority. India and China — which together currently have approximately one-third of the world’s population — will each have to create 100 million new jobs a year. Think about that.

•••

A lot has been made of the National Security Agency’ s (NSA) warrantless electronic surveillance, and that it is against the law. I don’t believe that it is. But that is my opinion, which doesn’t mean much. It isn’t up to me — or the readers of this column — to decide this issue. The executive branch and the Justice Department can make their own interpretation. If it is inconsistent with that of the Congress, then the Supreme Court would decide.

It should be noted that in 2002 the FISA Court opined that the president has constitutional powers that the FISA cannot encroach upon. It isn’t like the executive branch didn’t tell anyone — they told key members of Congress. It isn’t like the agencies — as they did prior to 1978 — were conducting surveillance without clear authority from the president. They were working under such authority, which was reviewed and updated at short intervals. The Foreign Intelligence Surveillance Act of 1978 (FISA) was enacted because of domestic surveillance that began in 1959 with Eisenhower. It continued with Kennedy, was greatly escalated by Lyndon Johnson (who established a separate division to handle domestic spying), whose paranoia was fueled by J. Edgar Hoover, who conducted his own warrantless wiretaps (for his own power). Nixon expanded it further when it became known as Operation CHAOS.

I remember all of this too well. However, in 1978 when FISA was enacted, how many cell phones were there in the public domain? None. How many disposable cell phones were there? Of course, none. How many personal mobile satellite phones that could reach others thousands of miles away were there? None. How many personal computers were there in the public domain? None.

How many worldwide citizens, not involved with the U.S. government, were accessing what is now known as the Internet? None.

A lot of things have changed since 1978. There are at least 50 countries that have known terrorist cells in them. We aren’t dealing with a static enemy, a nation-state that we can retaliate against and destroy. The scope needed to monitor possible threats is now a much larger universe than perhaps at any time in our country’s history, as we don’t know where the next group of terrorists intent on harming Americans — here and abroad — are going to come from. Thus, to lean on that law seems to be missing the forest for the trees. I am not sure that our laws were intended to be a suicide pact with ourselves.

In terms of the FISA Court, the Court is selected (solely) by the Chief Justice of the Supreme Court for seven year staggered terms. The selection is from sitting federal court judges who meet every few weeks as the FISA Court. Of course the Chief Justice from 1986 to his death in 2005 was William Rehnquist. It is now John Roberts. There is no congressional confirmation process.

What type of Judge do you believe has been selected for the FISA Court considering that out of some 19,000 requests for warrants only about five have been turned down? The threshold for FISA warrants is considerably below those of regular warrants. The former requires significant suspicion (if you are in the intelligence business, you are always suspicious), whereas a regular warrant would require probable cause — that the subject has done, or is doing, something wrong.

So, one might cynically argue that going to the FISA Court for a rubber stamp is somewhat of a joke. What sort of comfort does that really afford? Is that really a check and balance?

Incidentally, there are, I believe, 11 judges on the FISA Court now, and a panel of 3 to review those requests that were rejected by the primary court. As we all know, as a result of settled law, the judiciary is the sole determiner of what is the law. The Supreme Court has the ultimate say. Even with Justice O’Connor on the bench, I believe that the executive branch will prevail. Thus, it really doesn’t matter what Scott McLeod, John Kerry, or I think.

The NSA is involved in monitoring communication from specific, targeted individuals abroad, and if these communications are to individuals in the U.S., then they are intercepted for analysis. If there are suspicions about the recipients of the calls in the U.S, then they may monitor their calls.

However, in addition to the targeted surveillance of targeted individuals, the NSA, along with counterparts in Canada, the United Kingdom, New Zealand and Australi, operate wide-net programs, such as Operate Echelon, which dates back to the 1940s. It cast a world-wide net pulling in massive numbers of communications, screening them through program filters for language, location, key words, phrases, and other factors that they want to use to identify communications for analysis. Obviously, they have to establish very carefully framed filters, otherwise they will wind up with far more communications than they can analyze, which is often the case. They may listen to the U.S. side of the communications, and conclude that it is not something worthy of future surveillance.

•••

Now, if the citizens of the United States don’t trust the administration — for any reason, and for any action — then they can cast it out with the next election. The president of the United States takes an oath — arguably above all others — to protect the United States from enemies, foreign and domestic. We have seen that we have enemies who want to not only kill us indiscriminately, but to destroy our society. I, for one, don’t have a problem with the NSA listening in on my international calls, which have become less and less frequent, as I use the email and fax for the most part. I don’t have a problem with them monitoring these either. Why should I?

Nothing that is intercepted can be used for law enforcement purposes, admitted into court, or for regulatory enforcement purposes (note the Interception of Communication Act of 1985). Thus, I am not sure what the concern is.

We are videotaped, photographed daily as we go to the bank, Wal-mart, gas stations, etc. Someone can get your cell phone records and your landline phone records easily. A person can set up a listening device off your property and listen to your conversations. A private investigator can legally go through your garbage when you put it out on the street.

Those who go to Web sites or purchase items on line are susceptible to spyware and cookies being put on their computer to track their internet activity. What does Google, Yahoo, etc. have on you in their databases? Businesses now legally monitor employees (use of the Internet, telephone usage, etc). And it goes on and on. We are spied on, and have little privacy in our daily lives. That is a fact of life. Are we seriously talking about the NSA surveillance as a privacy issue? If they were abusing U.S. citizens with the information, that would be another matter. But there is no evidence offered that this is the case.

Now, I can’t believe that the NSA really cares about, or has time for, the chatter of ordinary citizens in the U.S. But, let’s face it, there are approximately 34 million foreign-born citizens in the U.S., as well as around 11 million illegals, and millions of permanent aliens (live here permanently but have not sought citizenship), and those on visas. Those who blew up the buses and the tube in London were all English citizens. Thus, we could — and most likely do — have U.S citizens sympathetic to those who want to harm us.

There is a belief by federal and local law enforcement that there are still sleeper cells in the U.S., preparing for the next attack. We have just had a new message and threat from Osama bin Laden. The general belief in law enforcement and in intelligence, is that it is not a matter of if, but just a matter of when we get hit again. Those who mean us harm could be on tomorrow’s flight from Madrid. We have to be right 100 percent of the time; the terrorists only have to be right once.

Again, FISA was not intended to be a suicide pact with ourselves. That has been lost in the discourse and opining. Why are we still relying on a 1978 law, when so much has changed in electronic communications?

•••

In response to the issue that Scott raised in his column, yeah, I use hand sanitizing gel when I can’t wash my hands. It is offered that washing your hands often is the best way to avoid getting a virus. When I can’t wash my hands, I will reach for the gel. It is just a precaution, and has nothing to do with fear. There is nothing wrong with reasonable precautions. I take more and more as I get older. There is nothing wrong with being cautious. It is probably underrated.

I am admittedly fearful of another terrorist attack, having gone through 9/11 in New York — wrong to time to visit my son and to celebrate my birthday on 9/12. I am fearful for him as he rides the subway to and from work and elsewhere in the city. I am fearful that his office may be within a target area. Courage is not the absence of fear, but the ability to control it. But, control is the operative word. Courage most often is manifest when the individual believes that they have some element of control in the situation. Fear is most often bred when one feels helpless, and without control.

That is how I feel about the overreaching threat to our society and our families — and especially my son. I cannot do anything, and that is the root cause of my fear. I built my son an urban survival pack, and did other things that gave me a momentary sense of control. Yes, I am fearful, and I only hope that NSA is listening to the right targets, and listening carefully. There are no battle lines, and the enemy does not wear a uniform. It is the nature of their stealth operation that makes such perpetual surveillance so necessary and vital. It gives me much more comfort that the NSA is listening than the prospects that they can’t do so because of some antiquated law passed before the modern electronic communication devices were even available.

I want them to listen more! We can’t lock down our cities, search all the traffic coming/going, etc. Thus, how will be able to determine if we may be an imminent target? Think about that. In terms of privacy, again, we have to put things in perspective.

Let’s fix the law, not curtail the surveillance.

 

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