June 17, 2014–Just a couple of days ago I wrote about bad-mannered criticisms by Michael Kinsley that aimed America back toward a 1984-style society (“Ugly Image in Critic’s Mirror,” June 15, 2014). Mr. Kinsley stated his preference for living in a society where the government decides what information the public can learn about. Two items from yesterday’s news illustrate just how dangerous is that preference.
In a development from Chicago, the Federal Circuit Court overruled district court judge Sharon J. Collins, who had decided for a motion this past January that would have given lawyers access to evidence the U.S. government had submitted to the FISA court. Lawyers defending a man alleged to have planned a terrorist bombing of a Chicago bar, under the appeals court decision, are thus barred from seeing the evidence used to justify full NSA surveillance of this individual. Under legal precedent established by the Supreme Court, warrants can be invalidated if they were premised on omission or misrepresentation. We have already seen massive omission and misrepresentation in the NSA program, hence there is reasonable suspicion that might be the case with the agency’s FISA application here. By its decision the appeals court robs the defendant of the ability to test the quality of the FISA application.
Our other development is from across the pond, where NSA’s British counterpart, the Government Communications Headquarters (GCHQ), as a result of a document sprung loose by a freedom of information lawsuit, has been forced to reveal some of its rationale for dragnet surveillance. The GCHQ believes that a British citizen is legitimately subject to electronic eavesdropping if she or he makes any use of a message service (like Google, Facebook, or Twitter) that uses servers or search engines located outside Great Britain. GCHQ insists its spying is legitimate even in the case of British citizens inside the UK merely communicating with each other.
These are the authorities Michael Kinsley would like to rely upon to say what can be released to the people.
Meanwhile, on the diplomatic front the real costs of NSA spying are evident in the kid gloves being used by Vice-President Joseph R. Biden, Jr. on a trip to Brazil. Biden’s visit, ostensibly to watch the United States and Ghanian teams compete for the World Cup of football, is potentially the highest-level contact between the U.S. and Brazil since the spooks’ eavesdropping on Brazilian President Dilma Rousseff became known last year. Rousseff then cancelled a long-awaited visit to the U.S. and sternly criticized Washington at the United Nations General Assembly last fall. Right now Biden and Rousseff are tip-toeing around each other, both telling reporters the time may be right, conditions have “matured,” and so on. This dance may lead to a meeting. If it does, feathers will have to be smoothed, but Brazilian-American relations could be back on track.
The score? A full year of void for the United States with one of its major Latino trading partners–and for Brazil its second-largest foreign market. A continued delicate rapprochement which may yet go awry (there remains the question of whether the U.S. will apologize for its spying). All of this because a bunch of stupid spooks couldn’t keep their ears in their pants. This real cost is not due to the leak of the fact of the spying, it is entirely because of what the NSA is, in fact, doing.