Telling The NSA What’s Good For It

Dec 19 2013 @ 11:40am

An advisory committee report (NYT) released yesterday encourages Obama to reform the NSA. Amy Davidson provides an overview:

The thirty-page executive summary might be further condensed to a few sentences: Don’t do things just because you can. Tell people what the rules are. Remember that “security” doesn’t just mean chasing terrorists—it “refers to a quite different and equally fundamental value,” spelled out in the Fourth Amendment: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Stop shutting down debate by muttering about a “balance” that needs to be struck between security and freedom—they are not on opposite sides of the scale. Start thinking about privacy.

Eli Lake highlights key recommendations. Such as:

The review group recommends more stringent standards for protecting the privacy of foreign nationals. For example, it says U.S. monitoring communications of foreigners should not be based on their political or religious beliefs; should not be used to gain trade secrets; and must be “directed exclusively at protecting national security interests of the United States or our allies.” In addition the review group’s recommendations say the U.S. government should apply the Privacy Act of 1974 to foreign nationals as well as U.S. citizens. The nearly 40-year old law requires U.S. government agencies to protect personal information from U.S. citizens and not share it within the government.

Ambers points out other important bits. Third on his list:

The controlling metaphor for privacy should not involve balance; it should involve risk. One hears the voice of panel member Cass Sunstein in the following sentence: “Before they are undertaken surveillance decisions should depend (to the extent feasible) on a careful assessment of the anticipated consequences, including the full range of relevant risks. Such decisions should also be subject to continuing scrutiny, including retrospective analysis, to ensure that any errors are collected.”

Benjamin Wittes calls this “a really awkward document for the Obama administration”:

The President, after all, has stood by the necessity of the Section 215 program and objected to legislative proposals to curtail it. Then the White House handpicks a special review group, and it kind of pulls the rug out from under the administration’s position. The review group concludes “that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.” It also reflects skepticism that the program functions as a kind of insurance policy, “alleviating concern about possible terrorist connections…” Ouch.

Allahpundit speculates about Obama using the report to change course:

There’s no way, really, for him to suddenly change his mind and claim that he’s spontaneously reconsidered everything he said before in defense of the program. But if his handpicked panel floats a few ideas for him, he can portray himself as the can-do executive who took the problem seriously enough to closely investigate it and then listened to his experts when they urged him to change course in a few ways. He conducted a fact-finding mission, by delegation, and now his opinion has changed in a few particulars. What a champ.

Drum bets that few of these recommendations will make it through the political process:

How much of this will survive the president and Congress? I’d like to say I’m optimistic, but I’m not, really. These recommendations are useful but modest, and I suspect that Congress will whittle them down even more.

Crowley zooms out:

It remains to be seen which of the panel’s recommendations President Obama might adopt — and how much change a Congress where the NSA has powerful allies will enact. But if the NSA’s wings are clipped, it will be another step in America’s steady march away from its post-2001 wartime footing, one that has accelerated dramatically, if quietly, in Obama’s second term.

Finally, Conor uses the report to defend Snowden:

If a government employee or contractor leaks classified information to the press, and the result is a judicial finding that the government has violated the Fourth Amendment, multiple pieces of bipartisan reform legislation circulating Congress, and a review for the president that suggests reforms to multiple secret programs, what do you call the leak? I call it whistleblowing.