Mr. Smith goes to Las Vegas

I want to return briefly to this week’s Frontline installment Spying on the Home Front. Reported and co-written by Hedrick Smith, the show combines ignorance and smugness in high doses. Smith seems to have perfected the art of the raised eyebrow for interlocutors such as John Yoo.
The show struck me as almost a parody of the Frontline genre. A little bit of Bush Derangement Syndrome here, a little bit of scarifying there, and voila. The New York Times celebrates you and decries the descent of the dark night of fascism:

[I]n “Spying on the Home Front,” tonight on PBS’s “Frontline,” Hedrick Smith doesn’t merely re-sound the familiar alarm that public officials are rooting through our mail and phone records. He suggests that the domestic surveillance begun by the Bush administration after the attacks of Sept. 11, 2001, redefines the legal standards on which the United States was founded.

And the Washington Post salutes your frank depiction of “of how we have moved from state police to police state”:

The documentary is a straightforward indictment of the Bush administration’s decision to sacrifice individual liberties for collective defense.

Smith frames the show with the story of Stephen Sprouse and Kristin Douglas, married in Las Vegas in December 2003. A mock Elvis serenades the couple as they tie the knot in one of the Strip’s ecclesiastical monuments to the great Presley. Mr. Sprouse complains of the invasion of privacy entailed in the transfer of hotel records to the government at year-end as part of its effort to follow up on a report of a possible terrorist attack on New Year’s Eve in Las Vegas. The Sprouses don’t seem like the shy type, but there you have it. Another Bush administration outrage!
The only context the show provides for the measures undertaken by the government is 9/11. Given that no subsequent threat has materialized — take the Las Vegas example that frames the show — it soon appears that our liberties have been trampled in pursuit of phantoms. It would be more accurate, however, to note the government’s success so far in preventing additional attacks by the likes of the Lackawanna Six (apparently another phantom threat, according to a previous installment of Frontline) using techniques such as those put in question by the Frontline show.
Take a related example that relied on post-9/11 legal reform of the kind criticized on the Fronline show. For more than ten years University of South Florida Professor Sami al-Arian ran the North American branch of Palestinian Islamic Jihad from his academic perch in Tampa. All the while al-Arian raised funds for murder. All the while the FBI knew of al-Arian’s activities from intercepted communications secured under the Foreign Intelligence Surveillance Act. Yet all the while the FBI was prevented from sharing the evidence of al-Arian’s terrorist activities with its own criminal staff because of “the wall” set up — out of privacy concerns of the kind highlighted on the Frontline show — between intelligence officers and enforcement authorities under FISA. The PATRIOT Act took down the wall and enabled al-Arian’s prosecution.
Spying on the Home Front included the obligatory reference to the Bush administration’s “domestic eavesdropping” — you know, the NSA program limited to international communications — the obligatory implications of illegality, and the usual failure to note previous practice or judicial authority supporting the legality of such eavesdropping. I found it interesting that the show reserved its greatest concerns for the NSA/ATT Internet program about which it was able to report very few facts. Perhaps the “domestic eavesdropping” story is just old news. If the show covers it, as it does, why not shed some light on it?
The show’s alarmism about the Bush administration and about governmental invasion of privacy is dependent to a great degree on Smith’s lack of knowledge, as well as that of his audience. Smith seems to think that the Fourth Amendment requires a warrant for all searches. He seems to think that some novel perversity is attendant to the prohibition of the public disclosure of National Security Letters by their recipients. He seems not to know of the information that third-party holders are routinely required to provide to governmental agencies by grand jury subpoena, by administrative subpoena, by currency transaction and suspicious activity reports filed by financial institutions, and the like.
As I watched the show, with its succession of talking heads who seemed on average about 50 pounds overweight, my mind wandered. I thought to myself that it was time to retrieve another Frontline installment from mothballs.

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