A tough and thorough report by an independent panel of experts last week should be all the justification that President Obama needs to make critical changes in the National Security Agency’s spy programs to protect Americans’ privacy without undermining national security.
Until now, President Obama has tried to deflect criticism of the NSA secret surveillance projects that a federal judge last week labeled “nearly Orwellian.” The president has offered soothing assurances that he understands why the public is worried, but he has never committed to undertake the changes necessary to ensure a minimum level of privacy. It’s time to stop talking and start acting.
The report by a five-member panel of intelligence and legal experts appointed by the president himself stopped short of recommending the dismantling of NSA programs designed to prevent acts of terrorism. Nor should they have. The threat of terrorism on American soil remains very real.
But does that mean that the public has to surrender a reasonable expectation of privacy in communications, either by phone or in cyberspace? The NSA’s excesses, responding to orders from two administrations and from Congress, went far beyond what is necessary to maintain a proper balance between security and the right to be free of a smothering level of surveillance.
The panel included Michael J. Morell, a former No. 2 official at the CIA, and Richard A. Clarke, a former high-ranking security expert at the White House under both Democratic and Republican presidents. Both former insiders, along with the others, are well aware of the level of intelligence needed to keep America safe.
Yet, to their credit, members of the panel made 46 distinct recommendations that would sharply curb data mining and other forms of intrusion into private communications. These go well beyond the cosmetic changes agreed to by some on Capitol Hill and inside the government.
Among the most important is the recommendation that the data gleaned from systematically collecting the logs of every American’s phone calls — so-called metadata — should be held in private hands (phone companies or some sort of private consortium) and not by the government itself. The NSA would have to get a judge’s order to perform “link analysis” on any stored record.
Also significant: A recommendation that the government stop trying to weaken encryption standards by Internet service providers and others so that it can easily crack their systems to gather data. And the panel also wants to reform the super-secret surveillance court so that it could be transformed into a true adversarial system to allow a “public-interest advocate” to represent the side of privacy and civil liberties whenever those interests are at stake.
These are all sound recommendations, especially in view of a ruling by U.S. District Judge Richard Leon last week that “the government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack.” He called part of the surveillance program unconstitutional, a word that should sting the former constitutional law professor who occupies the Oval Office.
The president is expected to announce next month what he intends do about the secrecy programs. He should embrace those changes that provide greater accountability and enhance the civil liberties of Americans. If there are recommendations he cannot accept, he must make a persuasive case to the public as to why.