Editorial: Checks on the NSA
Now that President Obama has arrived at the conclusion that the National Security Agency’s systematic collection of Americans’ phone records should end, it is important to review how we reached this point.
The secret program was disclosed last June when newspapers first carried stories based on documents provided by Edward J. Snowden, a disaffected former contractor for the agency. They reported that the NSA was collecting, analyzing and retaining records of millions of phone calls placed in the United States. The scale of the effort was never exactly clear, but nobody officially quarreled with the characterization of the effort as massive.
The public reaction was initially muted, probably because the NSA was not actually listening in to phone conversations but rather collecting “metadata” — records of phone numbers, time and duration of calls, and perhaps the location of the parties at the time the calls were made.
The Obama administration and congressional leaders of both parties were quick to assure the public that the program was legal, vital to national security and subject to rigorous oversight by Congress and the Foreign Intelligence Surveillance Court. House Speaker John Boehner, for instance, said, “When you look at these programs, there are clear safeguards. There’s no American who’s going to be snooped on in any way, unless they are in contact with terrorists somewhere around the world.”
As it turned out, none of these assurances was wholly accurate, although it took a while for that to become clear. The legal authority was not unassailable: O ne federal judge eventually would rule the program unconstitutional on the grounds that it violated Fourth Amendment rights (a view promptly rejected by another federal judge.) As time went on, some key members of Congress claimed that they had not known the full extent of the surveillance and thought that it went beyond what they had authorized. The FISA court appeared to be more the agency’s lap dog than its watchdog. And the government couldn’t point to any terrorist attack that had been averted by use of the data.
By August, opinion polls were showing an American public increasingly restive about the program, perhaps because, with the help of civil liberties and privacy advocates, people were beginning to grasp the implications: that the raw data could potentially be used to develop a full portrait of an individual’s associational patterns — religious, medical, political, sexual, social. In other words, the government was collecting data that could be used to breach the very notion of private life.
And once that happened, Congress woke up and began to push to rein in the bulk data collection program. By December, both the administration and Congress had reached the conclusion that something of greater or lesser extent needed to be done. Outlines of both proposals became public this week. The president’s would end the bulk collection program and would require the NSA to obtain a court order before obtaining specific records.
The lesson here is a simple one, but it lies at the heart of democracy. Secrecy is the enemy of accountability. Information is power; the public only has a chance to exercise power when it has the necessary information. Snowden provided that information and thus is arguably the most consequential private individual of his time when it comes to influencing government policy.