The law is no protection if the U.S. government ignores it

We've seen chilling abuses in the IRS scandal. Imagine the harm if PRISM were used for partisan purposes.

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"It's fascism," declared Democratic political operative Bob Beckel. "It's nothing to fret over," said Commentary magazine editor John Podhoretz.

The Obama administration "has now lost all credibility," said The New York Times. "There seems to be little here that is scandalous," said The Wall Street Journal.

The world has turned upside down since the British newspaper the Guardian, revealed Wednesday that Verizon has turned over to the National Security Agency telephone record information for hundreds of millions of calls made by Americans. Liberals are attacking the Obama administration. Some conservatives defend it.

Neither our civil liberties nor our privacy are threatened, said a White House spokesman, because the metadata the NSA is collecting (numbers dialed and duration of calls) reveal nothing of their content.

Then the other shoe dropped.

"The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, emails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates," The Washington Post reported Thursday.

"They quite literally can watch your ideas form as you type," the intelligence officer who leaked details of this program, code-named PRISM, told the Post.

I'm inclined to agree with those who think the furor over the initial Guardian story is much ado about not much. Data mining has prevented at least one terrorist attack in the last few years, said Rep. Mike Rogers, R-Mich, chairman of the House Intelligence Committee. We have no expectation of privacy for the metadata being turned over to the NSA. No harm can come to us from mining it (unless we've been making a lot of calls to suspected terrorists overseas).

But it's not much ado about nothing. The NSA's collection of telephone metadata is authorized under the "business records" section of the Patriot Act. Rep. James Sensenbrenner, R-Wis, sponsored it in the House of Representatives. The administration has expanded data mining beyond what the law permits, he said in a letter to Attorney General Eric Holder.

Still, safeguards have been built into the Patriot Act. A judge in a special court must issue a warrant before data can be collected. The House and Senate Intelligence Committees must be informed of any warrants issued, and briefed regularly on investigations. The law itself must be reauthorized every few years.

PRISM may be another matter altogether. So is The Wall Street Journal's report Thursday that NSA is collecting information on our credit card transactions too.

Only noncitizens outside the U.S. are supposed to be targeted by PRISM. But, said the Post, the NSA's search parameters require only 51 percent confidence in a target's "foreignness," and the safeguards against misuse of information about American citizens inadvertently gathered are less robust than the administration claims.

There are "numerous inaccuracies" in the Post story on PRISM, said James Clapper, the director of National Intelligence. But he didn't identify any. We're supposed to take his word for it.

But Mr. Clapper's credibility is suspect. The government doesn't "wittingly" collect data on Americans, he told Sen. Ron Wyden, D-Ore, at a hearing in March.

Though he was informed while the attack on our consulate in Benghazi was in progress that it was the work of terrorists, Mr. Clapper initially backed the administration's story about a YouTube video. After the lie was exposed, Mr. Clapper blamed intelligence officers for the misinformation.

Mr. Clapper is hardly the only senior administration official to mislead Congress. Mr. Holder has made it into something of an art form. Congressional oversight isn't much protection if Congress is being misled.

And the law is no protection if the government ignores it. We've seen chilling abuses in the IRS scandal. Imagine the harm if PRISM were used for partisan purposes.

"The American government has never done anything as sinister as PRISM," said J. Christian Adams, a former Justice Department civil rights lawyer. "No war, no threat, no nothing, justifies the National Security Agency obtaining a direct pipeline to the Skype chats of every American."

"We begin to see the wages of having an administration that abuses its awesome powers, then ... misleads Congress and the public," said former federal prosecutor Andy McCarthy. "Crucial national security measures, which operate on the forgiving assumption that government officials will conduct themselves honorably, are put at risk."

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Jack Kelly is a columnist for The Press and The Blade of Toledo, Ohio. jkelly@post-gazette.com, 412-263-1476. This story originally appeared in The Pittsburgh Press. To log in or subscribe, go to: http://press.post-gazette.com/


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