The Surveillance State Is Well Protected and Winning

The president is on the right track but still needs to bring the NSA to heel.

President Barack Obama looks through binoculars towards North Korea from Observation Post Ouellette during a visit to the Joint Security Area of the Demilitarized Zone (DMZ) near Panmunjom on the border between North and South Korea on March 25, 2012.
National Journal
Ron Fournier
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Ron Fournier
March 25, 2014, 6:05 a.m.

Bul­lied in­to ac­tion by Ed­ward Snowden — no hero or trait­or, he — Pres­id­ent Obama might fi­nally get one thing right about the Sur­veil­lance State. To bor­row a fa­vor­ite phrase, he might be on the right side of his­tory.

The New York Times re­por­ted today that the White House will ask Con­gress to end the Na­tion­al Se­cur­ity Agency’s open-ended col­lec­tion of data about Amer­ic­ans’ call­ing habits. Un­der the pro­pos­al, the bulk re­cords would stay in the hands of phone com­pan­ies, which would not be re­quired to re­tain the data for any longer than they nor­mally would. The NSA could seize spe­cif­ic re­cords only with a judge’s per­mis­sion.

It’s an im­port­ant step, but Obama still must show he can be trans­par­ent, trus­ted, and ef­fect­ive. Will he be bet­ter about re­veal­ing and ex­plain­ing the ad­min­is­tra­tion’s na­tion­al se­cur­ity meth­ods?

Will his ad­min­is­tra­tion stop pars­ing, de­ceiv­ing, and ly­ing un­ne­ces­sar­ily about in­tel­li­gence pro­grams? Will the worst of­fend­ers (read: James Clap­per) be held ac­count­able?

Will his bill be­come law? It could track the Obama-era pat­tern: a pub­lic-re­la­tions salve fol­lowed by le­gis­lat­ive fail­ure.

Let’s hope Obama suc­ceeds. The na­tion­al se­cur­ity com­munity must be both well armed and fully sup­por­ted by the Amer­ic­an pub­lic to counter ex­ist­en­tial threats in a post-9/11 world. For in­stance, the abil­ity to trace and ana­lyze the phone re­cords of sus­pec­ted ter­ror­ists and their as­so­ci­ates could save lives — and in cer­tain cir­cum­stances, with prop­er checks and bal­ances, the pro­cess might in­clude the re­cords of Amer­ic­ans.

The Obama plan, as de­scribed by Charlie Sav­age of The Times, ad­justs the bal­ance between se­cur­ity and liberty:

The new type of sur­veil­lance court or­ders en­vi­sioned by the ad­min­is­tra­tion would re­quire phone com­pan­ies to swiftly provide re­cords in a tech­no­lo­gic­ally com­pat­ible data format, in­clud­ing mak­ing avail­able, on a con­tinu­ing basis, data about any new calls placed or re­ceived after the or­der is re­ceived, the of­fi­cials said.

They would also al­low the gov­ern­ment to swiftly seek re­lated re­cords for callers up to two phone calls, or “hops,” re­moved from the num­ber that has come un­der sus­pi­cion, even if those callers are cus­tom­ers of oth­er com­pan­ies.

The N.S.A. now re­tains the phone data for five years. But the ad­min­is­tra­tion con­sidered and re­jec­ted im­pos­ing a man­date on phone com­pan­ies that they hold on to their cus­tom­ers’ call­ing re­cords for a peri­od longer than the 18 months that fed­er­al reg­u­la­tions already gen­er­ally re­quire — a bur­den that the com­pan­ies had res­isted shoul­der­ing and that was seen as a ma­jor obstacle to keep­ing the data in their hands. A seni­or ad­min­is­tra­tion of­fi­cial said that in­tel­li­gence agen­cies had con­cluded that the op­er­a­tion­al im­pact of that change would be small be­cause older data is less im­port­ant.

The in­tel­li­gence com­munity ar­gues that the cur­rent pro­gram does not con­sti­tute spy­ing on Amer­ic­ans, be­cause ac­tu­al tele­phone calls are not mon­itored. First, do you be­lieve them? Second, in a mega-data world, the bulk col­lec­tion and ana­lys­is of tele­phone re­cords yield to the gov­ern­ment vast amounts of per­son­al in­form­a­tion. It’s spy­ing. It needs to be done spar­ingly and un­der the type of check-and-bal­ance ap­proach sug­ges­ted in the new Obama plan.

Obama’s bill will com­pete with oth­ers on Cap­it­ol Hill that would au­thor­ize the cur­rent pro­gram with only minor changes. Minor fixes aren’t enough. To pro­tect the Con­sti­tu­tion and his leg­acy, Obama must do more than pro­pose a full over­haul. He must win it.

Pri­vacy ad­voc­ates and lib­er­als might call Obama’s ca­pit­u­la­tion a vic­tory for Snowden. I wouldn’t. I’m still where I was nine months ago, when I dis­missed the hero-or-trait­or de­bate and said the fo­cus should be on sur­veil­lance pro­grams launched by Pres­id­ent Bush after 9/11 and ex­pan­ded un­der Obama.

Love him or hate him, we all owe Snowden our thanks for for­cing upon the na­tion an im­port­ant de­bate. But the de­bate shouldn’t be about him. It should be about the gnaw­ing ques­tions his ac­tions raised from the shad­ows.

In the end, fear and polit­ics likely will pre­vail, as it has in Amer­ica’s past. Wash­ing­ton elites will close ranks to pro­tect the Sur­veil­lance State, to trample out trans­par­ency and to mis­lead the pub­lic. Maybe we can talk first?

So now we’ve talked, and now Obama has a bill, and not much else has been done. The Sur­veil­lance State is well pro­tec­ted and win­ning.

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