These are all difficult questions. What is needed is not dogmatism, posturing and self-righteous declarations of outrage (on either side of the debate), but careful, rigorous reasoning and scrutiny. The president’s speech marks a potentially historic turning point in our continuing effort to strike a better balance between liberty and security. But only time will tell. As the president said, this is only the beginning. We must all watch very closely.
This is how Geoffrey R. Stone concluded his analysis of President Obama’s speech last Friday on the NSA surveillance program(s).
As readers may recall, Stone was one of the five members of the Review Group that President Obama appointed in August to advise him on the NSA issues.
As such, Stone should be in a “reasonable good position” to, as Stone himself says, weigh in on the question of “How good of a beginning has the President made?”
While the Review Group made 46 unanimous recommendations to the President and while the President addressed several of them, Stone, in his latest essay at the Huffington Post, analyzes and comments on three of them.
First, the Section 215 telephone metadata program — “the most controversial surveillance program at present,” as the President noted.
Stone notes:
Under this program, the NSA collects metadata on millions of Americans’ phone calls every day from their telephone providers. Metadata refers to the specific phone numbers with which a particular phone number is in contact. It does not include any information about the identities of the callers or the contents of the conversations.
Stone: “Our judgment was that, in a world in which ‘connecting the dots’ and ‘finding needles in haystacks’ are apt metaphors, abandoning the program would be like throwing out your fire alarm because you haven’t had a fire in seven years.”
On the other hand, Stone writes, “the Review Group recognized that this program poses a huge danger of government abuse” and, to prevent that, the Group recommended:
[T]he metadata should be held, not by the government, but by private parties — either by the telephone providers themselves or by a newly-created private entity charged with the responsibility of protecting and overseeing the database. In addition, [the Group] recommended that no one should be able to access the database without a court order. With those changes in place, [the Group] concluded that the potential benefits of the program could be preserved while reducing dramatically the potential risks to privacy and civil liberties.
Stone notes, “In his address, President Obama accepted these recommendations. The government, he announced, will no longer hold the data and will not be able to access the data without a court order.” Stone calls this a “huge step forward,” an approach “wholly consistent with our recommendations.”
Second, Stone addresses the Group’s recommendation that “an independent Privacy and Civil Liberties Advocate should be created in order to present a competing perspective when complex legal and constitutional issues arise before the Foreign Intelligence Surveillance Court.”
He continues:
The Review Group concluded that, at least when complex issues arise, it is essential for the members of the FISC to hear both sides of the question. This practice lies at the very heart of our adversary system. The president accepted this recommendation and called upon Congress to enact legislation to implement it. Although the Review Group preferred a somewhat different structure for the Privacy and Civil Liberties Advocate than the one endorsed by the president, and I am sure we would be happy to argue the point, the most important fact is that he has endorsed this critical institutional change.
Third, the Group recommended, “the FBI should no longer be permitted to issue National Security Letters [NSLs] without first obtaining a judicial order, in the absence of an emergency.”
The Group’s judgment was that, “in order to ensure the integrity of the program, NSLs generally should not [be] issued without prior judicial approval.” The FBI resisted this proposal, the Group disagreed with the FBI, but “The president sided with the FBI. Although stating that various reforms would be adopted to reduce the secrecy of NSLs — reforms we endorse — he declined to accept our recommendation about judicial orders.”
Read more of Stone’s excellent analysis here.
(Congratulations to the Seahawks and the Broncos. See you at Super Bowl XLVIII.)
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