The past week, events merged into the most vigorous reassessment yet of policies devised a dozen years ago in the wake of the Sept. 11 attacks. A federal judge delivered a scathing review of the surveillance program at the National Security Agency, declaring the operation “Orwellian” and unconstitutional. On Capitol Hill, lawmakers began to rethink views that have prevented the Obama White House from closing the misguided prison at Guantanamo Bay.
Most telling, an advisory group, tapped by the president, made recommendations to curb the reach of NSA surveillance. The five members made a careful evaluation, advancing proposals that would require the agency to gain more approvals as part of enhancing oversight, all with the goal in mind of safeguarding individual privacy while allowing the intelligence community to respond effectively to genuine threats.
This balance has been the challenge from the start, the country enhancing its guard without sacrificing defining principles. The reporting driven by Edward Snowden and his release of classified documents has revealed the mammoth expansion of the National Security Agency. Silicon Valley executives have warned that the taint of compromised privacy has harmed their competitive position in the marketplace.
To the agency’s credit, its surveillance has not resulted in an actual scandal. What worries is the significant potential for abuse. Thus, the advisory group sensibly embraces the creation of a “public interest advocate” to represent civil-liberty concerns as the agency seeks court permission to conduct deeper surveillance.
It also makes sense for the Supreme Court chief justice to share with the other justices appointments to the Foreign Intelligence Surveillance Act court. That better ensures balance in overseeing the NSA program.
The agency practice that has stirred the most controversy has been the collection of practically all American phone calls, not the content but the numbers and times. Two dozen or so analysts can tap into the phone records based on a “reasonable, articulable suspicion.” The advisory panel rightly proposes that going forward, the analysts first obtain a court order, putting in place an essential checkpoint.
That may slow the process of intelligence gathering. The panel concluded that the step brings more value than harm, especially in the realm of bolstering public trust. Another recommendation would require that this “metadata” remain with the telecommunications companies. That works in theory. Practically speaking, an effective structure may be hard to construct.
There is reason to wonder, too, about a recommendation that would limit the country’s ability to exploit flaws in hardware or software that allow for conducting cyberattacks. Other countries are not balking in the same way.
Best to add components that aim to shape the culture or spirit of the agency, such as making the NSA inspector general a presidential appointee needing Senate confirmation, or requiring in law the appointment of a civil liberties officer at the agency. The National Security Agency plays a crucial role in intelligence gathering. It also can do its job without putting privacy at risk. The president’s advisory group has done much to elevate the discussion about precisely how.