President Obama’s message about the government’s massive electronic surveillance programs came through loud and clear: Get over it.
The president used more soothing words in his pre-vacation news conference Friday, but that was the gist. With perhaps the application of a fig leaf here and a sheen of legalistic mumbo jumbo there, the snooping will continue.
The modest reforms Obama proposed do not begin to address the fundamental question of whether we want the National Security Agency to log all of our phone calls and read at least some of our e-mails, relying on secret judicial orders from a secret court for permission. The president indicated he is willing to discuss how all this is done — but not whether.
“It’s not enough for me, as president, to have confidence in these programs. The American people need to have confidence in them as well,” Obama said. But if this is truly what he believes, he should have kicked off this confidence-building debate years ago, long before former intelligence analyst Edward Snowden blew the whistle.
Snowden’s disclosures do look increasingly like whistle-blowing, by the way, rather than espionage or treason. If administration officials really welcome the discussion we are now having, shouldn’t they thank Snowden rather than label him an enemy of the state?
As part of its public relations campaign, the administration released a 22-page white paper outlining its legal rationale for collecting and keeping a detailed log of all our domestic phone calls. The document depends on novel definitions of words whose meaning, I always thought, was fairly clear.
Section 215 of the Patriot Act gives the secret Foreign Intelligence Surveillance Court the authority to order businesses to hand over “any tangible things” needed for an investigation into international terrorism. “Metadata” about our phone calls is classified as a tangible thing. In the digital age, I suppose that’s an understandable stretch.
But those tangible things must be “relevant to an authorized investigation” to obtain foreign intelligence or protect against terrorism. The administration, with the secret intelligence court’s blessing, essentially argues that “relevant” can be construed to mean its exact opposite.
Only an infinitesimal fraction of the billions of phone call records being stored in the NSA’s computers will actually have anything to do with terrorism or espionage. The government argues that it must have the entire haystack to find these few needles. Therefore, every piece of hay — your lunchtime call to your spouse, say, or your evening chat with an old friend — is relevant to an investigation.
Which investigation might that be? On this question, the administration argues there is no need to be specific. “An investigation” is taken to mean, roughly, any investigation designed to prevent terrorist attacks.
Obviously, we all share this aim. But we also share an appreciation of the Fourth Amendment, which prohibits searches without suspicion. Without informing us, the judges of the secret intelligence court have construed the amendment to permit the collection of vast, unprecedented amounts of private information about individuals who are not, the government admits, under any suspicion.
The administration white paper says we shouldn’t worry because this reasoning would not apply, say, to medical records or library records. But we have no way of knowing what other encroachments on the Bill of Rights the intelligence court might have blessed, because the court’s rulings are classified.
Proceedings before the court are not adversarial; only the government side is presented. Obama acknowledged that this “may tilt it too far in favor of security, may not pay enough attention to liberty.” He proposed changing the law so that “privacy advocates” could argue the other side in some cases — an idea that already has advocates on Capitol Hill.
What real difference would that make, though, if we are still denied the right to know about secret court rulings that redefine and abridge our constitutional rights? I’ll believe Obama is serious about reforming the intelligence court when he calls for all its interpretations of the law — without details of specific orders that would tip off terrorists — to be made public.
And I’ll believe Congress is serious when it clarifies the Patriot Act and other laws to spell out that the Constitution still applies. The NSA’s capability to obliterate privacy is rampaging ahead. The law desperately needs to catch up.