Catch the Ball, but Don’t Watch It!

When my sons were very small, I worked to teach them how to catch and hit a baseball.

“Watch the ball,” I’d say as the little guys would close their eyes and swing the bat wildly or clasp at the air instead of catching the ball.

“Why do you always say that, Dad?” they’d ask. At the age of the 3 or 4, the common sense answer wasn’t at all obvious to them.

“’Cause if you don’t watch it, you’ll never be able to catch it,” I’d respond.

It appears that the same common sense answer is eluding those on both the Left and the Right who are outraged by revelations that (1) the NSA is intercepting international email and phone calls from those who have known or suspected connections to terrorist organizations, and (2) the FBI is conducting passive radiation checks on buildings frequented by Islamic organizations. In essence, they expect the intelligence and law enforcement community to catch terrorists, but to watch them only after undergoing a (sometimes ponderous) judicial review.

It’s sort of like knowing that the pitch has been thrown and having the bat poised to swing. But instead of watching the ball and hitting it out of the park, the batter must first get explicit clearance from the manager, who is in the dugout. By the time the manager says ‘do it,’ the ball is in the catcher’s mitt. Strike one!

Now, I know that those of you who are constitutional purists will object to this metaphor. The constitution requires judicial review for criminal searches and seizures, you’ll argue. All we need to do is get the appropriate permissions, then we can watch the terrorists. As an abstraction, no one can argue with this.

But in the real world of the early 21st century, we encounter a few common sense problems. First, the threat we face is NOT criminal in the classic sense. The people who threaten us could kill orders of magnitude more people than the worst serial killer or psychotic gang member. Hence protections that were designed for criminal behavior are tenuous at best. Second, time is of the essence --there is no guarantee that once a potential threat is discovered we’ll have the time to obtain proper judicial review. Third, by revealing methods and techniques (via media leaks or open congressional hearings) we reinforce our enemy's understanding of our approach and help them to become even more illusive, thereby reducing the time we’ll have to act, thereby making a requirement for judicial review all the more dangerous.

I guess it all boils down to which you believe is the greater threat – government surveillance of those suspected of ties with terrorist organizations or the death of hundreds, thousands, or even more due to an action that might have been discovered and prevented if surveillance were unfettered. The ball is in the air. It’s your call.