NSA headquarters

Image courtesy of University of Maryland

Reining-In the NSA, Sort Of

| published Friday, January 17, 2014 |

By R. Alan Clanton
Thursday Review editor

President Barack Obama announced on Friday an overhaul of the way the National Security Administration manages its controversial metadata program in which the NSA harvests millions of cell phone and land line calls of Americans and foreigners.

Speaking from the Justice Department press room in Washington, the President defended what he called “the vital role” that members of the NSA and other agencies have played in protecting the United States, especially after 9/11, but stressed that a widespread perception has arisen of a government agency engaged in unlimited spying on its own citizens.  The President seemed today to try to strike a balance between the two viewpoints.

“As a President who looks at intelligence each morning,” he said, “I cannot help but feel that our nation needs to remain vigilant.” The President cited the historical record of American intelligence gathering, from the Sons of Liberty and Paul Revere, to the code-breakers of World War II, to the intelligence gathering capabilities set in motion by Presidents Harry Truman and Dwight Eisenhower at the height of the Cold War.

But after 9/11, he said, American intelligence gathering operations were compelled to make significant, transcendent changes. Along with those changes came overreaches and abuses, the result, he said, of “inadequate oversight.”

Among the highlights of the President’s speech was a list of proposed changes to the way the NSA will gather and manage its information, and changes to the way security agencies approach surveillance. These changes would include: automatic annual reviews of procedures and policies; added transparency to how decisions are made; an annual review for the purposes of declassification of FISA decision-making; the establishment of a panel of advocates from outside the national security apparatus; and clearer procedures for the collection and analysis of data—emails and phone calls—sent between Americans and foreign nationals.

The President, while defending the role that a national security apparatus must play, nevertheless said that the government should not be in the business of bulk collection and storage of the private phone records of American citizens. Instead, law enforcement and government security agents will be required to seek judicial authorization—warrants, judge’s signatures, subpoenas—before any government agent or operative can query the data of phone companies or wireless providers. The new arrangement would, he said, “preserve the capabilities we need without the government being responsible for maintaining the data.”

Obama said that it is a misperception that the NSA harvests and stores actual phone conversations, emails or texts—but only the numbers, times and durations of such calls and data transfers. Such information is valuable in the interdiction of terror where traditional methods of thwarting terrorist acts are insufficient. He cited the example of calls made by one of the 9/11 terrorists—calls which took place between San Diego and Yemen. No comprehensive program existed prior to 9/11 to flag those calls as critical to law enforcement, but under the current metadata program such a call would be more easily identified as significant.

The President, while again stressing that certain overreaches and abuses had obviously occurred, also defended the need for international intelligence gathering operations. Obama said that foreign intelligence operations are limited to specific missions: counter-terrorism, counter-proliferation, cyber-attacks and cyber-crimes, and national or international security.

He stressed that U.S. spy operations are not designed to suppress anti-American opinion or to dissuade dissent, or to gather private information on those with political differences with their government.

The NSA’s massive program, which has been developing and increasing since late 2003, came dramatically to light last spring when a computer contractor and security analyst, Edward Snowden, secreted thousands of pages of documents out of the NSA. Snowden fled the country, then, first in Hong Kong and later in Moscow, released some of those materials to reporters. Those leaks revealed the extent of the NSA’s program.

On Friday the President again offered no quarter for Snowden. “I am not going to dwell on Mr. Snowden’s actions or his motivations,” the President said. Obama said that the U.S. cannot tolerate its security agents or employees unilaterally revealing the nation’s secrets.

After Snowden’s leaks, the revelations of the NSA's activities came as a shock to many Americans. At issue has been the NSA’s latitude to collect such an enormous swath of the personal information of millions of Americans, much of it from phone data—from land line providers and cell phone companies—but also from emails, search engine requests, text messages, uploads and downloads, and other electronic transactions. The NSA and its supporters have maintained that such extensive harvests of data are necessary to track potential terror threats and security risks. Opponents of the program—many progressive, some conservative—have said that the program is a clear violation of the U.S. Constitution, and specifically tramples on the Fourth Amendment.

The ACLU and libertarian groups have complained that the NSA’s mission has been an overreach of the law, especially the data collection and storage. By early December events were moving swiftly through the courts.

In December, a Federal judge Richard Leon ruled that the NSA’s data collection was not only unconstitutional, but even “Orwellian” in scope and magnitude. But only weeks later, Federal judge William Pauley of the U.S. District Court of Appeals (Southern District of New York) reversed the lower court decision, declaring that issues of national security and interdiction in potential terror plots trump concerns over privacy. Several Congressional inquiries were launched, and the President—under political pressure from all sides—established a special panel to review the matter.

Earlier in January, as the issue appeared to be headed toward the U.S. Supreme Court, the President said he would consider the recommendations of that panel and make a decision, presumably a reduction in the NSA’s authority to collect, store and access phone records.

At the end of December the ACLU and others had joined in a new lawsuit, this time using the Freedom of Information Act as its primary legal tool. Created in 1966, FOIA declares that government activities and actions which involved U.S. citizens are subject to scrutiny and transparency. Since much of the data being collected by the NSA included the data of American citizens, the ACLU had argued that the NSA was subject to the guidelines set forth under the FOIA.

Some in Congress, and many within the intelligence community, have argued that the surveillance and data collection is necessary to insure the safety of Americans from the threat of terror.

The consensus immediately after the speech was that the President was walking a very tight line, defending the role that the NSA plays in protecting the United States and its allies, but also giving credence to the widely held view of many—on the left and the right—that the NSA had overstepped its mission. Furthermore, the President, calling for a “transition period,” stressed that some of the proposed changes may take many months or more to implement.

“This debate will make us stronger,” the President said, “and in this time of change the United States of America will have to lead.”

Senator Rand Paul (R. KY) was unmoved by the President’s speech, and in a conversation on CNN minutes later suggested that the issue may still end up in the U.S. Supreme Court. Senator Paul found the President’s Paul Revere analogy ironic, since the Sons of Liberty were an organization formed to protect Americans from foreign invasion and intrusion. “Paul Revere was warning us that the British were coming, not that the Americans were coming,” he said.

Some libertarians had already anticipated that the President would propose better internal measures for national security operations to police themselves, and critics of the program since its revelation last spring have suggested that the FISA court process is little more than a closed-loop—one secret agency approving the actions of another secret agency.

“The NSA cannot oversee themselves,” Senator Paul said, “that’s why we separate these powers.”

To read related Thursday Review articles on this topic:

The President, Congress & Reining-In the NSA; Thursday Review; January 9, 2014.

Turnkey Tyranny: Or, If I am Not Doing Anything Wrong, I Have Nothing to Fear, Right?; Thursday Review; January 6, 2014.

The NSA Super Hackers, and Your Cell Phone Secrets; Thursday Review; December 31, 2013.

Thwarting Terror: How Much of Your Personal Data is Enough?; Thursday Review; December 27, 2013.