17/01/2014
Miquel Porta Perales is a critic and writer
A federal court in Washington and another one in New York have issued a pair of conflicting decisions on the call-tracking program, known as the "Snowden case" or the "cyber-spying case." The former questions the constitutionality of the tracking program while the latter states that the practice complies with the law. The former–Richard Leon, appointed by George W. Bush–argues that the phone records program of the National Security Agency (NSA) of the United States violates the right to privacy of citizens: "I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval." The latter–William Pauley, appointed by Bill Clinton–rules that the program meets the "containment measure" taken by the Government to prevent further terrorist attacks after 9/11, 2001: "No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice."
One interesting detail of the resolutions of the two judges: Richard Leon supports his doubts about the constitutionality of the program on the Fourth Amendment. William Pauley should clarifies that he is not deciding on the "natural tension between protecting the nation and preserving civil liberty" because that issue should be resolved by "the other two coordinate branches of Government."
Richard Leon or William Pauley? In my opinion, the dilemma has a legal and a political response. The legal response refers to the Fourth Amendment, which reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." While Richard Leon argues that these lines would support the constitutionality of the program, William Pauley states that the Fourth Amendment does not apply to data stored by third parties, in this case Verizon company, the archives of which were penetrated by the NSA. In any case, the Supreme Court will decide.
The interesting thing about the Leon vs Pauley case lies in the political answer provided by one of the judges. That resolution of the matter for "the other two branches" of power. Thus, the key issue would lie in the Legislative and the Executive. This, in turn, refers to the ideas that Bruce Ackerman–Professor of Law and Political Science at Yale–explained in his work Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (Spanish edition in 2007). In short: Bruce Ackerman–who wants to protect democracy from terrorists and also from certain measures which democracy itself could take–calls for emergency legislation authorizing temporary measures to fight terrorism once a first serious attack has taken place. For example, declaring a state of emergency if necessary or the buildup of extraordinary powers–preventive retention and detention of suspects–by security services. It should be stressed that these are temporary measures, authorized and controlled by Congress–"the other branch of power," like Judge William Pauley would say–which do not involve any permanent damage to freedoms and fundamental rights. Is wiretapping one of those temporary measures? I will answer with another question: Why not? Following certain rules, of course.
Make no mistake, the United States is not the one who's threatening. The enemy is–among others–jihadism inside and outside the West which endangers our security and our liberty. And it's the intelligence services, by gathering information for example, the ones that can neutralize such a challenge. If we do not look for them, they will find us. Bruce Ackerman, categorical, concludes his reflection with the following words: "The future of fundamental freedoms is in better hands if guarded by wolves and not by ostriches." Only the naive and irresponsible–angelical 'goodism' and anti-American progressivism which consider the United States as something like the enemy at home–will deny this. All the more reason to celebrate the fact that intelligence services are doing their job. Within certain rules, as I said before.