On January 21, 2009, I stood on the steps of the United States Capitol and heard Barack Obama – who, minutes before, had been sworn in as the president of the United States – deliver a striking call for the protection of civil liberties. “Our Founding Fathers,” he said, “faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man.” As Americans, he added, we must “reject as false the choice between our safety and our ideals.”
How troubling, then, to hear that same president claim on Friday that America must strike “the balance between security and liberty” – embracing the same false choice that he himself once denounced.
The president’s remark came in a nearly hour-long speech intended to calm public fury over the National Security Agency’s abuses of its surveillance authority. His speech suggested that the intelligence community is undergoing meaningful reforms, but the truth is that the president’s reform proposals are not nearly as exhaustive, or as effective, as he implied.
We should start by remembering that the NSA’s abusive practices originated in the organizational culture of the intelligence community as a whole: collect everything, keep everything – forever. The NSA has dedicated, patriotic Americans who employ astounding, sophisticated capabilities and who are developing more every day. Naturally, in their zeal to do their job, they want to use their capabilities to the fullest, even if this tramples on the rights of Americans or is ineffective.
But rather than meaningfully reining in these capabilities, the president’s proposals continue to allow surveillance of Americans without requiring a Fourth Amendment determination of probable cause. They continue to regard Americans as suspects first and citizens second. They continue to allow the government to build backdoors into computer software and hardware. They fail to strengthen protections for whistleblowers who uncover abusive spying.
The most disturbing omission from President Obama’s reforms was any commitment to enforcing the Fourth Amendment’s warrant-based, probable-cause standard for seizing and searching the communications of any American. Instead, the president required only “reasonable suspicion” to query the NSA’s mass surveillance databases – a much lower standard that was already in place during the abuses uncovered to date.
In embracing the “reasonable suspicion” doctrine, the president overruled his own task force on surveillance reform and endorsed a practice that a U.S. District Court judge has found unconstitutional. He also misinterpreted the intent of our Founders when they wrote the Bill of Rights in the first place. In his history lesson he omitted discussion of the despised general warrants that colonists found so daunting and frightening and that have returned now in the wholesale collection of data on Americans. The Fourth Amendment does not exist to impede police or intelligence agencies. To the contrary, it exists to hold to hold government agents to a high standard – to ensure that they act on the basis of evidence and pursue real culprits, rather than wasting time and resources on wild goose chases.
The president also left unaddressed the subversion of encryption standards by the NSA, as well as its efforts to pressure companies to build “back doors” into their products to facilitate NSA access to hardware, firmware, or software. American tech companies stand to lose billions of dollars in overseas business due to the revelation that the NSA has pressured them to hamper their own products. That economic toll seems likely to mount in the months ahead.
And of course, the president’s remarks left unaddressed a deeper problem: how can we trust that the intelligence community is being honest about its own activities? Even I, as a member of Congress, have been repeatedly misled by the NSA. In December 2005, for instance, when I was a member of the House Permanent Select Committee on Intelligence, I asked NSA Director Keith Alexander whether the NSA was spying on Americans. He assured me they were not. One week later, The New York Times ran its initial story on what is now known as the "Stellar Wind" warrantless surveillance program.
How, in an atmosphere of such secrecy, can the public ever gain full confidence that the NSA is operating within legal bounds? Because the work of the NSA is so extensive and so technical, courts overseeing its programs need enhanced technical expertise. And because the NSA’s executives are so skilled at presenting only the information they chose, full oversight is possible only with inside information from whistleblowers who understand the programs. Without whistleblower protections for intelligence employees that are similar to those afforded to other government employees, Congress and the public will learn of failures or abuses too late, if ever. But the president’s proposals omitted any mention of whistleblower protections, as well.
Even the modest improvements that the president announced – for instance, requiring a cost-benefit analysis before spying on the heads of state of foreign nations, rather than simply spying on everyone – are subject to reversal at a stroke of the president’s pen. These new standards are backed only by the president’s good intentions.
But as Daniel Webster observed in an earlier age, "Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters."
Our duty is to ensure that our nation remains under the rule of law, not the whims of those in power. We must eliminate these NSA programs and their actual and latent potential for abuse. To achieve that end, Congress should pass the Surveillance State Repeal Act – legislation I’ve authored that would repeal the laws that made the NSA’s abuses possible in the first place.