Spying run amok

Our rights shouldn't evaporate when spies get new tech toys

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I miss Brody. So why did he have to go? The poor guy was put at the end of a rope because the writers of “Homeland” were at the end of their rope. They had conjured a hypnotic character who was both hero and villain, patriot and traitor. Brody was still on the run, but his creators had run out of ways to reconcile their curdled Marine’s poles without making the plots too implausible.

In the finale, during a scene set in a CIA safe house in Iran, Brody fretted to Carrie that maybe he was, as a doctor in Caracas had said, “a cockroach. Unkillable, bringing misery wherever I go.”

The talented Damian Lewis told The New York Times’ Dave Itzkoff, “They ended up creating such a compelling, unpredictable, sad and ambiguous character who was capable of so much damage — he was able to affect the story on such a grand scale. They created a monster that they couldn’t quite control… The thought of having to continue to write him was too hard, perhaps.” Mr. Lewis noted that “Brody’s a very unbalancing force.”

It’s so easy to wipe the slate clean on TV. In real life, Americans must keep struggling to fathom the compelling, unpredictable, sad, ambiguous, unbalancing force, the young man on the run who sought to cause damage on a grand scale and who has sparked a national debate about whether he’s hero or villain, patriot or traitor.

After a federal judge said in a ruling Monday that the National Security Agency’s collection of phone data on all Americans was “almost Orwellian,” an assault on privacy that would leave James Madison “aghast,” a civil liberties group that had plastered a Washington, D.C., bus with the words “Thank you, Edward Snowden!,” said it saw a “significant increase” in donations to expand the campaign.

Whatever we think of Mr. Snowden — self-aggrandizing creep, or self-sacrificing crusader against creepy government spying, or sociopath with stolen documents, as The Wall Street Journal put it, or someone who should “swing from a tall oak tree,” as John Bolton told Fox News — it is absolutely clear that the NSA went wild with technology that allowed it to go wild. These technological toys turn everyone into thieves.

It is clear that the balance of national security versus civil liberties is way off kilter. President Barack Obama said he welcomed a debate on the morality of his Big Brother eavesdropping program, but he never really wanted it. He irritated some of the tech CEOs who came for a meeting at the White House Tuesday by yanking the conversation from the overzealous NSA surveillance that creates suspicion of their complicity to the underwhelming rollout of Obamacare.

Bloomberg News reported that Yahoo’s chief executive, Marissa Mayer, cautioned the president that backlash over U.S. spying could Balkanize the Internet, as countries put in place different standards to stymie surveillance. It took a passionate 64-year-old judge who likes exclamation points to finally holler “Hold it!”

“It’s a wake-up call,” said Sen. Ron Wyden of Oregon, a leading critic of the NSA’s indiscriminate scooping up of data. “Piece after piece, the government’s case has fallen apart.”

(The old joke of No Such Agency might become No Stopping That Agency.)

As The Times’ chief Washington correspondent Carl Hulse tweeted, Judge Richard J. Leon was nominated to the bench by President George W. Bush on the “notable date” of Sept. 10, 2001 — the eve of the day that reshaped the American psyche, sometimes in unsettling ways that erred on the side of security rather than the values that make America.

After W. and Dick Cheney ignored warnings of an al-Qaida strike, they proliferated a mindset that there was no step too far to protect us from that happening again, be it attacking a country that hadn’t attacked us, torturing, warrantless wiretapping, spying Stasi-style on our allies or denying prisoners due process.

Judge Leon wrestled with the legality of holding detainees at Guantánamo Bay and now he suggests that the NSA snooping may be unconstitutional. The government’s legal precedent, he wrote in a ruling that will reverberate in Congress and at the Supreme Court, has been eclipsed by “a cellphone-centric lifestyle heretofore inconceivable.”

“It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement,” he wrote, “it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government.”

Though the Justice Department tried to justify the mammoth hoovering by insisting on the need for speed, the judge pointed out that the NSA couldn’t cite a single instance in which its haystack of data had produced the needle to puncture an imminent attack.

It’s always the case that technology is invented and used before its consequences are known. And it is also true that there are terrorists who want to hurt us.

But Judge Leon struck a blow for the proposition that our moral and legal values regarding privacy are not obsolete just because some government employees out in suburban Maryland in a secretive agency with its own exit off the Baltimore-Washington Parkway got carried away with their cool new toys.

Maureen Dowd is a syndicated columnist for The New York Times.

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