President Barack Obama asked a panel of intelligence and legal experts to review the massive surveillance by National Security Agency. Now he needs to listen to his advisers and curb the NSA’s excesses.
The panel’s report, released Wednesday by the White House, says the NSA should no longer keep a database of virtually all Americans’ phone logs. Instead, the experts said, the “metadata” – numbers called and received, and the date, time and length of calls – should be stored by phone companies or a third party. The agency would have to get a court order to look at the records in terrorism cases.
While the panel’s proposals fall short in some areas, such as the collection of electronic communications, many of its 46 recommendations are spot-on. The president, not intelligence officials, should decide whether to spy on foreign leaders, especially our allies. A public interest advocate should represent the interests of privacy and civil liberties before the secret court that is supposed to oversee the NSA. Also, the experts rightly focus on greater transparency and accountability, essential to start restoring trust that intelligence officials have squandered with their out-of-control snooping.
Some of the proposals are similar to those in bills with growing bipartisan support in Congress. When lawmakers get back to work in January, they need to put NSA reform near the top of their to-do list – especially if the president, as many expect, rejects many of the experts’ recommendations when he unveils his own changes in January.
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Obama ordered the review after the uproar caused by the stunning revelations, starting in June, by former NSA contractor Edward Snowden. The report was released weeks earlier than planned, and the timing is surely no accident.
It came a day after technology company executives met with Obama to voice their concerns about the NSA programs, which they warned are costing them business and could damage the broader economy, and two days after a federal judge issued a landmark ruling that the NSA surveillance on Americans’ phone calls is likely unconstitutional.
After all the NSA’s obfuscation and false reassurances, U.S. District Judge Richard Leon brought some welcome common sense to the debate. He called the technology used by the NSA “almost Orwellian” and declared that the author of the Constitution, James Madison, would be “aghast” at the invasion of privacy. He pointed out that the Obama administration failed to cite “a single instance” in which the phone snooping actually stopped an imminent attack. And he warned of the “very real prospect” that the surveillance “will go on for as long as America is combating terrorism, which realistically could be forever.”
The government, which is almost certain to appeal the ruling, is relying on a 1979 Supreme Court case that says there is no constitutional protection for phone metadata. Yet, as Judge Leon noted, our laws must be brought into the 21st century to reflect the technological and cultural changes wrought by smartphones and how much most Americans use them in their daily lives.
Nominated by George W. Bush the day before the Sept. 11 attacks, Leon also knows that winning the war on terror by trampling on our liberties is no victory at all.
For far too long, how the NSA has been using its increased powers since 9/11 has been shrouded in secrecy. Now, the proper balance between privacy and security is being openly debated in Congress and the courts. In our republic, that’s the way it ought to be.