What Would Dirty Harry Do?

Illustration by Jeanne Verdoux

I was 13 in 1967, so I know, man: Paranoia strikes deep, into your life it will creep, it starts when you’re always afraid, step out of line, the man come and take you away.

But in fact, I’ve never tended to overworry privacy. Sure, it’s creepy when Word is open on both of my computers at once and Microsoft messages me to say that isn’t allowed, then automatically shuts down one of the programs. And I’m glad I don’t have an employer who can monitor my e-mails. But I recite credit-card numbers over a cell phone. It doesn’t spook me that the streets of this city are rife with surveillance cameras, and that the police can track me by means of my MetroCard. At home, unless I happen to be cooking a batch of methamphetamine or counting my Krugerrand horde, I never close the curtains or pull the shades.

I consider myself a civil libertarian, but not an absolutist. Most of us are willing to trade some liberty for some safety; the Bill of Rights isn’t a suicide pact. In my view, for instance, the Second Amendment shouldn’t cover handguns. And since 9/11, I’ve gone squishy as well on the Fourth, the one prohibiting “unreasonable searches and seizures.” Examining subway passengers’ backpacks for bombs seems pretty reasonable to me.

But the succession of revelations this last month—the four years of domestic spying by the National Security Agency, the routine surveillance of political demonstrations by New York cops posing as demonstrators, the FBI monitoring vegans and petans, now the Justice Department’s drift-net subpoenas for records of Internet-pornography searches—is disturbing. However, it would be a mistake if we let the issue be cast only as an argument between proto-fascist (or heroic) Republicans and fussbudgety (or heroic) liberals, between the NSA and the ACLU. The really troubling thread running through all these cases is their arrant, misguided stupidity. To me, the excess and gratuitous sneakiness are more appalling—and dangerous—than any invasion of privacy or chilling effect on freedom of speech.

The police and FBI stories didn’t get much play—in part because they were too plainly ludicrous to incite a critical mass of serious outrage. Both, however, illustrate incomprehensibly poor judgment about the post-9/11 allocation of resources. I badly want to believe that Ray Kelly’s 1,000-person counterterrorism division is nimble, gold-standard—but it does not inspire confidence that the NYPD considers it vital that cops infiltrate the monthly bicycle-riding demonstrations of a green group. And even as we were digesting the news of FBI agents fretting over llama-fur protests, senior FBI officials were complaining to the Times that they just didn’t have the manpower to check out all the counterterrorism leads the NSA was giving them.

The NSA’s eavesdropping project is a vastly more problematic issue. Unlike the cloddish Red Squad–redux shenanigans of the cops and FBI, which were ineffective and pointless but perfectly legal, it may have been effective and worthwhile—and illegal.

The key question is why the administration decided to conduct those operations ad hoc and in secret. Why didn’t they get warrants from closed sessions of the Foreign Intelligence Surveillance Court, which exists for just such purposes? The court has turned down exactly five of the government’s 19,000 requests in its 28 years of existence.

According to Patrick Radden Keefe, author of the excellent new book Chatter: Dispatches From the Secret World of Global Eavesdropping, the NSA was engaging in “the kind of connecting the dots that we failed to do” with the 9/11 hijackers. In other words, supercomputerized counterterrorism like on 24—like we want it to work in real life. And indeed, the eavesdropping did lead to the 2003 arrest of would-be Brooklyn Bridge terrorist Iyman Faris.

Keefe speculates that the NSA program “was a kind of highly evolved social-networking experiment: You start with a single party to a phone call, and ask who that person is calling, and who are all of those people calling, and so radiate outward.” Such a process is exponential, leading quickly to many thousands of new names to check out. And so the administration decided that this unaccustomed flood of intercepts made the existing legal protocols too cumbersome. But back in the freaked-out, total-national-security-consensus, USA Patriot Act days of 2001 and 2002, Congress surely would have enacted any necessary adjustments. And the post hoc keep-it-secret-from-the-terrorists argument is specious.

No, the most powerful motivation to go the shadowy black-world route, I think, was that T-crossing and I-dotting and congressional and judicial oversight are for pussies. The administration’s post-9/11 M.O. has been to plunge ahead unilaterally, heedlessly—ready-fire-aim. The legal iffiness of the NSA project was probably an unspoken plus for Bush and company, a confirmation of their James Bond boldness and unfettered executive potency.

So as in Iraq, a manly-man high-handedness coupled with a kind of panicky CEO impatience has led to a wasteful, overpoliticized, self-defeating mess—arrogance becomes incompetence. They’ve made what may have been a good idea look dubious, and their lame justifications now make it look even worse. The legal defense is that President Bush has essentially unchecked power to gather foreign intelligence—anything goes in wartime.

Court-shmourt, warrant-shmorrant—that’s all just more liberal pussy talk. As Karl Rove put it the other day, “President Bush believes if Al Qaeda is calling somebody in America, it is in our national-security interest to know who they’re calling and why. Some important Democrats clearly disagree.” In fact, of course, no one disagrees. Rove and Bush are betting that they can win politically by defaulting, as always, to the binary caricature: Republican tough guys and Democratic wimps. If the rule of law is undermined in the process, well, too damned bad. Dirty Harry and 24’s Jack Bauer take legal shortcuts to get the bad guys, too, and they’re American heroes.

What may give pause to more Americans as they consider the electronic-privacy-versus-security issue is the Google porn-hunting case. The government subpoenaed every search query entered for two months last summer—literally thousands of my searches, all your searches, everyone’s searches—as part of its project to redraft a new, tenable version of the unconstitutional anti-online-pornography law. And Yahoo, MSN, and AOL complied.

More than 42 percent of all Internet users visited a pornographic site during one month last summer—which implies that a huge majority does so occasionally. And now all of them will have cause to think: First they came for the Muslims, and I didn’t speak up, because I wasn’t a Muslim, and then they came for the porn hounds, and I didn’t speak up, because I—hey, wait a second, I am kind of a porn hound. “My neck hairs stood up when I heard the news,” a suburbanite father of three told me.

Today it’s only your (anonymous) searches they’re sifting—but what might some crusader subpoena tomorrow? The camel’s nose is under the tent. And the resulting queasiness might incline regular Joes to see a pattern of Bush-administration overreach that’s troubling both because it threatens to intrude on their privacy and because it’s unnecessary, dopey: Justice wants the data so that its hired academic statistician can prove that porn-filtering software isn’t totally effective. It is just the sort of intrusive, nanny-state boondoggle conservatives used to deride liberals for.

“It’s important that [Google] fight this,” says Jim Harper, director of information policy studies at the (truly) conservative Cato Institute. “If we’re not careful, control and censorship of Internet data in this country could look more like China than we thought possible.”

Ah, China. “Our informal corporate motto,” Google’s Website brags, “is ‘Don’t be evil.’ ” How nice and simple and Web-utopian. Yet in order to do business in China, the big U.S. Internet companies have shown themselves willing to enable evil. Just last week, Google launched its new, censored, regime-friendly Chinese search service. Microsoft provides China special software with “banned word filters.” And in 2004, Yahoo gave the Chinese police the e-mail records of a writer who had posted, on a New York Website called Democracy Forum, a summary of a Communist Party memo concerning coverage of the fifteenth anniversary of the Tiananmen protests; he’s now serving a ten-year prison sentence.

Back in the mid-nineties, when the sci-fi future suddenly arrived—the Web, cell phones, GPS, tiny digital cameras—I remember feeling relief, and an almost providential sense of history unfolding in the right sequence, that Soviet totalitarianism had withered away in the nick of time. If the amazing modern digital apparatus had come along earlier and fallen into the wrong hands—the KGB, the East German Stasi—just imagine how the Big Brother nightmarishness could have been amped up . . .

It will be a great and tragic irony if, as China becomes economically Americanized, America becomes politically Chinafied. The odds are still good that the U.S. won’t be a police state a decade from now. But these new revelations are reminders that we really do need to fear fear itself, that paranoia can lead to panic and overreaction. I’m embarrassed to admit that a few days after September 11, 2001, when the man operating my regular falafel cart disappeared, I e-mailed the FBI’s tip-dump. What snitching and surveillance will we countenance if another attack kills thousands more Americans? And another, and another?

Before bin Laden’s followers make good on his new threats, we need to have a clear-eyed national conversation about the costs and benefits of accepting surveillance and sacrificing privacy, without defaulting to demagogic, black-and-white, Karl Rovean divisiveness (or its liberal equivalents). The unnecessary secrecy-exposé cycle of the NSA situation only makes that conversation more difficult to have right now. “Free people always [have] to decide where to draw the line between their liberty and their security,” a lucid expert testified to Congress in 2002. “Talk to your constituents and find out where the American people want that line between security and liberty to be.” The witness was General Michael Hayden, then director of the NSA, now deputy director of all U.S. intelligence.

E-mail: emailandersen@aol.com.

What Would Dirty Harry Do?