December 15, 2013
The presidential advisory committee looking into the National Security Agency's spying on millions of private email and phone messages is urging the Obama administration to adopt broad new measures to protect Americans' privacy rights and bring greater transparency to the agency's operations. Yet it remains to be seen whether any of the changes recommended by the panel will be more than cosmetic. "Transparent" is the last thing an intelligence agency wants to be, and the NSA is sure to push back hard against any effort to curtail its powers or limit its authority to gather information anywhere in the world.
The difficulty of reining in the NSA was underscored by a report on Friday that President Obama had decided to stick with a controversial arrangement under which both the NSA and the military's cyberwarfare command are headed by the same person, who by law must be a military officer. Critics of the arrangement argue that it concentrates too much power in the hands of a single official and reduces the intelligence community's accountability to civilian oversight. The fact that Mr. Obama signed off on continuing it despite the objections raised by his own advisory panel calls into question whether any NSA reforms will be more than window dressing.
Mr. Obama, who came into office pledging greater transparency and accountability in government, has indicated he favors some limits on the NSA's surveillance of U.S. citizens, and he is said to also favor a proposal for the White House to more closely monitor the agency's eavesdropping on foreign leaders of U.S. allies. Earlier this year the president was forced to apologize to German Chancellor Angela Merkel after it was revealed the agency had routinely listened in on her cell phone conversations, as well as those of the presidents of Mexico and Brazil. An embarrassed Mr. Obama promised Ms. Merkel such intrusions wouldn't happen again, yet he stopped short of extending the same assurances to the Mexican and Brazilian leaders.
The president also appears willing to consider regular White House reviews of the NSA's data collection programs, comparable to the ones it conducts on CIA covert operations. Moreover, he seems at least open to proposals to appoint legal advocates to argue against NSA spying operations submitted for approval to the Foreign Intelligence Surveillance Court. The secret FISA court judges provide the primary civilian oversight of the agency's operations, but currently only NSA lawyers can argue the merits of such cases, and the FISA court rarely says no to requests. The president is said to favor a more adversarial process in which arguments on both sides of the issue can be heard.
Still, it's unclear how far the administration is prepared to go to curb the NSA's authority to tap vast quantities of information about Americans' electronic communications and movements in cyberspace. Part of its reluctance undoubtedly stems from an understandable fear of relinquishing any tool that might prevent another terrorist attack on the U.S. homeland or leave us unprepared in a foreign crisis.
But surveillance technology has developed so rapidly — and in such secrecy — that it has outstripped officials' ability to keep track of when it crosses the line from serving national security needs to unwarranted incursions on Fourth Amendment rights or violations of international norms. The intelligence community seems at times to feel it should use these new technologies simply because they exist, regardless of whether they pass constitutional muster or whether the intelligence benefits derived from them outweigh the damage that might occur if they were exposed.
The NSA has always had its skeptics, but the movement to limit its powers only gained urgency after the revelations of former NSA contractor Edward J. Snowden, who leaked thousands of classified documents about the agency's spying programs to the news media earlier this year. The fact that the leaders of companies like Microsoft, Google and Apple say they are taking steps to strengthen encryption of their users' messages shows that many Americans feel more unnerved by the electronic overreaching of their own government than by potential threats from abroad.
The Obama administration seems to want to ensure continued access to every scrap of information the NSA can snatch out of the ether while at the same time reassuring Americans that their constitutional rights remain sacrosanct. It may be that he simply can't have it both ways.
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