At a recent news conference, President Obama noted that it is not enough for those at the White House to have confidence in the surveillance programs of the National Security Agency. He added: “The American people need to have confidence in them, as well.” Seeking to build such confidence was an element at work in the release last week of a 2011 ruling by federal Judge John Bates, then the chief judge of the Foreign Intelligence Surveillance Court, which oversees the NSA programs.
The judge sharply criticized the agency for misleading the court about the sweep of its surveillance. He argued that in pursuing targeted foreigners, the agency went too far in collecting data, without a warrant, about the communications of Americans, going beyond the rules the court had imposed. More, he noted that this marked “the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.”
Do the judge’s tough words reflect the vigorous oversight touted by the administration? That is one perspective. Then weigh the words of the judge: “in which the government has disclosed.”
Here is a problem with the surveillance programs, reflecting limits of the assurances voiced by the White House and others. The court depends wholly on the government to come forward with information about going too far. As federal Judge Reggie Walton, the current chief of the oversight court, recently told the Washington Post, the court does not have the capacity to investigate questions of noncompliance. It is “forced to rely upon the accuracy of the information that is provided to the court.”
In that way, the ruling of Judge Bates doesn’t so much reveal strong oversight as it points to the potential for abuse, and the need for further checks on such surveillance.
No question, monitoring Internet and phone traffic amounts to an effective tool for fighting terrorists. The direction in which Congress finally leaned is toward greater precision in deploying the surveillance. As several lawmakers have stressed, the focus turns in many ways on the definition of “relevance.” The administration applies the standard after it has collected data from millions of communications. Congress, worried about the possibility of fishing expeditions, had in mind applying the standard to the scope of the search.
Administration officials insist there have been no willful violations of the rules. They explain that the excesses represent a tiny fraction of the overall collection of data. Is that all part of what Americans must accept to be safe? The enemy in this fight gains when checks and balances are eased unnecessarily. Vigilance works both ways, an eye on the other side, and one cast at home so that fear doesn’t lead to something the country comes to regret.
The president has talked about joining Congress in a review of the surveillance programs, looking to improve the level of oversight. He rightly has sided with the concept of adding an advocate for the public interest to procedures of the Foreign Intelligence Surveillance Court. The release of the court ruling reinforces the need for lawmakers to revisit the scope of the surveillance, eyes on the factor of risk and all of what the country means by protection.