December 21, 2013
Bad Times for Big Brother
By THE EDITORIAL BOARD
It has been a long week for the National Security Agency. Last Monday, a federal judge ruled for the first time that the agency’s continuing sweep of Americans’ phone data — a once-secret program legally sanctioned for seven years and illegally conducted for five years before that — was very likely unconstitutional. Judge Richard Leon denounced the agency’s activities in collecting data on all Americans’ phone calls as “almost Orwellian.”
Two days later, the Obama administration released a comprehensive report that found “the current storage by the government of bulk metadata creates potential risks to public trust, personal privacy and civil liberty.” And last Friday, the latest release of classified documents from Edward Snowden revealed surveillance efforts that included the office of the Israeli prime minister and the heads of international companies and aid organizations.
If the N.S.A. had not already gotten the message, the 300-plus-page advisory report, by a panel of intelligence and legal experts selected by President Obama, surely drove it home. All three branches of the federal government are now on record as recognizing that the agency has repeatedly misused, if not plainly abused, its powers, and that it must be reined in. The report’s 46 wide-ranging recommendations include stopping the bulk collection and storage of phone data, reforming the structure and processes of the Foreign Intelligence Surveillance Court, installing a civil liberties advocate to argue against the government’s position in that court, and introducing stricter oversight of the agency’s actions across the board.
Most of these would be welcome reforms, and some of them Mr. Obama can put in place on his own. In fact, when he was a member of the Senate Mr. Obama supported many reforms that were similar or identical to the ones now on his desk. Yet as president, he has allowed the surveillance programs to continue and even grow.
That isn’t entirely shocking; the executive branch’s responsibility to protect national security is unique. But no matter who occupies the Oval Office, it has always tested and often transgressed the limits of its power. Over the long run, the nation cannot bank on presidential self-restraint or timely and favorable court rulings to stop the invasion of privacy on a mass scale.
Meanwhile, Congress has the power to change the surveillance laws, and now it has the support of a presidential commission, whose recommendations line up nicely with the provisions of the U.S.A. Freedom Act, a bill co-sponsored by Democratic Senator Patrick Leahy and Republican Representative James Sensenbrenner.
As that bill recognizes, one of the most urgent tasks for lawmakers will be to amend the law to stop the government’s collection and analysis of bulk data. Under the Patriot Act as it stands, the government needs only to show that the data it seeks are “relevant” to an authorized investigation concerning international terrorism — a vague standard that the intelligence court has interpreted so broadly as to make it meaningless. Any amendment should at the very least raise the standard to require a more direct connection between the data the government seeks and the wrongdoing it is trying to prevent.
Preventing terrorist attacks is a critical and complex job. But as the advisory report rightly emphasizes, a free society must have another kind of security as well: the security of its citizens from the “fear that their conversations and activities are being watched, monitored, questioned, interrogated, or scrutinized.” Without this security, “individual liberty, self-government, economic growth, and basic ideals of citizenship” all are jeopardized.
It has been more than six months since Mr. Snowden’s leaks began to expose breathtakingly broad surveillance activities that even monitored the communications of world leaders. The damage done to privacy rights, to the public’s trust in government and to diplomatic relationships is unlikely to be repaired for a long time.
In his news conference last Friday, Mr. Obama acknowledged that some reforms could be done, but he insisted that there was no evidence that the phone surveillance program was being abused — a truly disturbing assessment given all the revelations since June. He said there’s a need to restore Americans’ trust in their government. The way to restore that trust is not through cosmetic touch-ups, but by Congress and the courts setting firm limits on all surveillance programs and ensuring that the administration complies.