The National Security Agency’s historical attitude toward the public can be captured in an oft-invoked play on its initials: “Never Say Anything.” But as Sunday’s "60 Minutes" feature demonstrates, the NSA is now saying quite a bit—all part of an extensive public relations campaign designed to reassure the American public about the secret surveillance programs disclosed by Edward Snowden, and about the NSA generally.
In a way, I’m part of that effort. I was one of eight academics invited to the NSA’s sprawling Fort Meade complex last Thursday for a full day of high-level briefings and discussions that would previously have been impossible—at least for folks like me who don’t have a security clearance. Indeed, one of the senior officials we met with opened her session by emphasizing just how strange it was to be discussing programs that have historically been secret. Unsaid, but unmistakable, was that none of us would have been there had it not been for Snowden.
And while it was hard to shake the impression that each of the officials we met with had taken the Snowden leaks very personally, it was also hard not to like them, to appreciate their candor, or to conclude that they’re bright and well-meaning government officials.
But my day at the NSA did little to dissuade me from the view that our surveillance laws need significant reform. For an agency that purports to celebrate the protection of privacy rights as one of its five core missions, there seems to be very little understanding of what that actually means. Yes, the NSA has a massive “compliance” operation, which is designed to ensure that rules governing their surveillance programs are followed and to punish those (like operators who spied on their loved ones) who deliberately cross the line. And yes, the NSA is subject to extensive oversight from a number of different executive branch, legislative branch, and judicial branch institutions, to ensure, again, that the rules are being followed.
But what became increasingly clear as the day wore on is how unable the NSA is to appreciate the possibility that the rules themselves might be legally or constitutionally invalid. Perhaps the metadata program which collects electronic records is not authorized by Congress or is prohibited by the Constitution. Several of the officials bristled at any suggestion that the agency was actually exceeding its legal authority, even though there are good arguments on both statutory and constitutional grounds.
We heard several times how frivolous the Fourth Amendment challenge to the metadata program must be. Yet, just four days after the visit, the district court in Washington issued a decision to the contrary. And we were reminded, over and over, that Congress “ratified” the metadata program more than a half-decade after its initiation even though there was no public disclosure of the shaky legal grounds on which a secret court upheld that program. Nor was there any chance for most members of Congress to entertain arguments that the program was unlawful.
As for the “PRISM” program, which allows the NSA to access the content of communications, we heard the same mantra that NSA Director Gen. Keith Alexander provided to "60 Minutes": the NSA is not targeting the communications of Americans. But of course, such careful verbiage says nothing whatsoever about whether millions of Americans’ communications are nevertheless being intercepted or the few limitations on what the government can do with those U.S. communications once they are collected.
Most chillingly, when we asked how the Snowden disclosures might affect the balance between national security and privacy going forward, one senior official could only suggest that they will likely result in fewer First Amendment protections—implying that the only real constitutional change will be a reduction in press freedoms in response to the public disclosure of these programs.
But the best example of this cognitive dissonance is one specific exchange late in our day on campus. One official described the difficulties he had while speaking to school groups about the NSA, and his inability to convince students that Snowden was a “bad guy” who had done serious harm to U.S. national security. He asked us how he could more compellingly and convincingly make that case to young people. Bewildered, we asked why the merits of the surveillance programs turn in any way on whether Snowden’s a patriot or a traitor. Even President Obama has conceded that the public debate we’re now having is “welcome,” regardless of where we end up as a result.
But the NSA official’s reply seemed to suggest that these two perspectives are mutually exclusive—that we must choose between Snowden and the NSA. If we believe Snowden is a bad guy, then the NSA must be right. And if we believe he acted in what he thought were the best interests of the country, the NSA must be wrong.
The premise of the question suggested that we would all be better off if the American public were still as ignorant about the surveillance programs disclosed as a result of Snowden’s action. For the NSA, the problem appears to be about the need to respond to transparency and not the substance of the programs themselves (or the fact that they were authorized in secret).
In the end, this is the most entrenched problem I encountered during my visit: the NSA remains committed to the idea that, because a surveillance program will be much more effective if no one knows about it, it necessarily follows that the public should remain ignorant of it. Therefore, the NSA’s programs must be approved and implemented in secret unless and until the next Snowden reveals them.
I have to think that the American public is smarter than that. There’s nothing wrong with believing—as I do—that Snowden broke the law, and that his actions were at least reckless if not worse. But we’re also considerably better off as a nation for his having done so. And there’s nothing wrong with believing, at the same time, that there are people at the NSA who truly have the best interests of the country at heart and are dedicated to acting within the law. But the NSA should never have begun some of its programs without a robust public debate at the outset. Without Snowden, I would never have been invited to Fort Meade, and all of us, including me, would still be in the dark.
Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law