The Supreme Court will ultimately have to resolve the competing rulings, Friday’s from the Southern District of New York and the previous week’s from the D.C. District Court, on the NSA metadata program. Both are well reasoned; this issue is not constitutionally obvious, and bombast from either side will not be helpful in resolving it. But neither will emotional appeals to 9/11 such as the one with which Judge William Pauley opened his ruling upholding the program:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modern life, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
There are multiple reasons this retrospective appeal to 9/11 is unpersuasive. Regardless, the issue policymakers are going to have to confront sooner or later is whether the potential for terrorism is actually sufficiently large and unique to justify the potential cost to liberty imposed by this policy. Pointing to 9/11 does not establish the extent of the danger going forward, and presumably a threat must rise to a certain level to warrant this intrusive and sweeping a program. After all, no one has proposed the collection of metadata to assist in international narcotics interdiction, although one assumes it would be useful for that purpose. The reason is that drug trafficking, for all its ills, does not worry us enough to justify the intrusiveness.
The implicit premise of the NSA’s defenders, by contrast, is that the potential for terrorism presents a unique and grave danger that outweighs the potential constitutional costs of the metadata program. The appeal to 9/11 short-circuits examination of that claim. One cannot but suspect that it is intended to. But what if the claim is wrong?
Doubtless the world is a dangerous place: ever it was, ever it will be. But is it uniquely dangerous now, and is terrorism so unique a threat? It is presumably less of one than it was on 9/12, given assurances that core al-Qaeda has since been decimated. One would hope all those drone strikes have gotten us somewhere. But as John Mueller and Mark Stewart have argued, even the danger the group posed from the outset may have been exaggerated, at least compared to other threats to life that have not provoked so drastic a response. Al-Qaeda’s having pulled off a spectacular and horrific attack may have created an unrealistic impression of its capacity to repeat that feat. Its ability to project itself today may be inflated further still, judging from the pathetic condition in which Osama bin-Laden and his pornography collection were found.
To be sure, this is a murky area, dealing in probabilities that no one wants to calculate but surely someone in office has, and in the event, God forbid, of another attack, it would be difficult to claim in retrospect that the odds against it were long. But neither should we accept at face value the claims of a gravely imperiled world, especially when they maintain levels of fear that serve the interests of power yet are, somehow, made contemporaneously with triumphalist assertions of successes in the war on terror.
Of course, the fact that no attack has recently occurred hardly proves one will not occur in the future. Serious threats demand serious vigilance. But this is precisely the form of argument defenders of the NSA reject when it is made by constitutionalists concerned about abuses of metadata. In that case, NSA partisans insist that the purported absence of abuses of the program in the past—which, incidentally, is false; a FISC judge cited the NSA for “systematic noncompliance”—should assure us that it will not be abused in the future.
But here, as in the risk of terrorism, it is the potential for future harm that raises the concern. And that potential is palpable too. As Judge Leon noted, unlike at the time of Smith v. Maryland, telephony metadata today can be integrated to paint a comprehensive portrait of an individual’s associations and activities. That an abusive government, or unscrupulous agents of it, could use this for untoward purposes seems undeniable; the fact that it operates in this area in secrecy only adds to the danger.
In either case, we are operating in the realm of what could happen. The fears of terrorism and political abuse are both rooted in past events—9/11 on the one hand, ample instances of misused powers on the other. They are two potentialities, both of which one hopes are far-fetched but each of which has occurred and might again. The question is how to calibrate them. What cramps debate is that while one often hears the possibility of political abuse is slim, no such appraisal is permitted in the case of terrorism. Perhaps one reason is that downplaying the former while accentuating the latter is conducive to the maintenance of power. To be sure, the cost of being wrong in the case of terrorism is also immense. It is measured in lives. But Americans have been known so to value liberties too.