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NSA data-mining: Should Verizon have resisted?






by Tim Kern

June 29, 2013

The NSA, Justice, and the IRS have all recently been caught in witch hunts. So what? Hunting witches is a popular political pastime in America. Since the successful (from a bureaucrat’s vantage point) hunts in Salem, Massachusetts Colony in 1692, to the ultimately unsuccessful (but well-documented) cases against Presidents Nixon and Clinton, to today, witch hunts continue unabated. The public loves ‘em, even when the public is the victim.

“If they have nothing to hide, what is to fear?” has been the prosecutors’ mantra here for over 300 years (and well before that, in earlier societies and Inquisitions). A hundred years after Salem, our Founding Fathers answered that question with the Fifth Amendment, [“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”] and reinforced it with the Fourth [“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.”].

Each of the first ten Amendments (The Bill of Rights) is just a single sentence, carefully and clearly-written. Still, political parties and the government itself revel in the hunting of witches.

Political parties claim “witch hunt” every time an investigation yields indictments. Richard Nixon, Eliot Spitzer, Newt Gingrich, Bill Clinton, Eric Holder – all have been (or currently are) victims of witch hunts, according to their partisans and minions. “Successful” witch hunts (where the target is disgraced or punished) are held up as examples that “the system works.” Unsuccessful attempts lead to unanswered questions, like (former Reagan Secretary of Labor) Ray Donovan’s famous question, “Which office do I go to to get my reputation back?”

Civil activists stand with varying levels of conviction behind their own, as government and parties seek to ensnare such diverse targets as Martin Luther King, Jesse Jackson (Jr. or Sr.), David Koresh, Orenthal J. Simpson, Julian Assange, Lois Lerner, or Edward Snowden. Accusers and targets range all over the map, but the pattern is clear: when someone is accused, their supporters all cry “witch hunt!”

It’s been said that the only thing worse than “storm chasing” is “storm catching,” and much the same can be said for witch hunting. For, once the witch is caught, what is there to do?

The answer depends on two things: process and result. Our justice system is today much more concerned with “system” than “justice,” so the emphasis is on procedure, semantics, cleverness, and perhaps an element of deceit, all with the purpose of producing the “proper” (procedural) outcome, which result may or may not reflect justice. Judges tilt the scales in their allowance of evidence, procedure, and jury charges; the outcome of the trial is in the judge’s hands, much more so than in the hands of the juries.

Now come the NSA, the Justice Department, and the IRS.

What happens when the government engages in a secret witch hunt, a hunt which can easily be used for political purposes (and therefore probably is)? “If you have nothing to hide,” says the NSA, “you have nothing to fear.” That’s a direct quote. The answer may come from examination of the tactics and practices of another secret government terrorist group, the IRS, which collects financial data, and apparently much more, from citizens and citizen groups.

The people have plenty to fear, as it turns out. Their associations, their lifestyles, their sources of income, their spending habits, their likes and dislikes – all these come together in secret data screens and overt demands from “the government,” and the people have nothing to say about it. When the people protest, the government asks, “What are you hiding?”

Given the caprice of government and the vagueness of tax law (for a couple big examples), the people don’t know what they have to fear, until the trap snaps shut on them. Mistakes on a tax form can lead to indictments, years of harrassment, and bankruptcy – and even following the advice of the IRS in the preparation of those tax forms is no defense!

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Another example is the Justice Department’s investigation of Fox News reporter James Rosen, who was labeled as a “co-conspirator” when Justice went behind his back to track his phone calls and movements. The fact that the government side of the “conspiracy” was not mentioned (for how can there be just one “co” conspirator?) suggests an open-ended attempt at targeting and/or intimidation.

The NSA gathers data on hundreds of millions of US citizens, without a warrant, through the corporate bend-over by Verizon (and who knows what other companies?), and then says that “surveillance has led to the thwarting of terrorist plots in the US and 20 other countries,” as some kind of justification. The NSA also hasn’t made any kind of case for the efficacy of these dragnets in the supposed thwart-ings. There is no cause and effect; only a logically-unsupportable post hoc argument is offered.

So, how is today’s national government different from Salem’s local government in 1692? Well, it’s a lot more intrusive and more expensive. Gotta give ’em that.

Tim Kern’s column archive is available here.

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Tim Kern taught economics for fifteen years, hosted a radio talk show for nine, and continues to write and work on behalf of the Constitution, small government, and freedom. He has written or co-written three books, has bylines in over 50 magazines worldwide, and once earned an MBA from Northwestern University.

An archive of his recent columns.










The NSA gathers data on hundreds of millions of US citizens, without a warrant, through the corporate bend-over by Verizon (and who knows what other companies?), and then says that “surveillance has led to the thwarting of terrorist plots in the US and 20 other countries,” as some kind of justification.