Friday, January 17, 2014

Will Americans be Satisfied with Proposed NSA Reforms?

     Today, President Obama gave a much anticipated speech regarding the future of the controversial NSA programs.  While the president started with some historical context referring back to Paul Revere and the Sons of Liberty, he maintained that security is important to our liberty.

     The most anticipated reform the president announced surrounded the NSA's collection and storing of metadata.  To provide some context, metadata is information about information.  The way the NSA utilizes metadata is through information the phone companies already have on each cell phone.  The NSA simply has phone numbers and can track what other numbers those numbers call and the duration of the call.  As the president reaffirmed, the NSA is not listening to calls nor has there been any intentional abuse of power.  Many Americans are concerned that the government should not be holding this information and that there should be greater safeguards involving court orders or warrants to further query or gain more information on the numbers the NSA has.  President Obama did not say the program would be discontinued but rather, the NSA will only look at calls two steps away from suspected terrorists instead of the current three steps.  What this means is that far fewer records will be looked at or maintained because the NSA is focusing on a smaller nucleus of calls.  Picture a suspected terrorist as a target at the center of a web graph.  Someone who directly calls that terrorist is one step away or, referring to the web graph format, one web or spoke.  Then someone who is one step away from that suspected terrorist calls someone else making them two steps away and so on.  Furthermore, queries will only occur after judicial action or in extreme emergencies.

     Additionally, President Obama disagrees with private or third party groups holding the metadata despite what his independent advisory board recommended.  According to the president, this process can become very complicated if multiple third parties are holding on to metadata and the government must go to several groups just to act on potential terror activity.

     Metadata aside, I believe the most important change President Obama mentioned is the publication of the secret FISA court decisions.  President Obama announced he has already ordered the declassification of 40 decisions and going forward, decisions with no direct security implications will be declassified.  The reason this is significant is because the FISA court acts in absolute secrecy.  The judges are secret, their hearings are secret and their decisions are secret.  The FISA court has only ruled against the government a small percentage of the time.  Even more alarming is how the judges are chosen.  Chief Justice of the United States Supreme Court John Roberts solely appoints the FISA court judges.  They are not subject to Senate confirmation as all federal judges are.  This leads to a severely partisan set of judges that are completely insulated from outside criticism.

     By making these opinions public, Americans will be able to read how these judges came to their conclusions and actively participate in the ongoing debate.  In my opinion, one of the current problems with the numerous lawsuits brought against the NSA is lack of standing.  In one of the first challenges to the NSA's collection of metadata (Clapper v. Amnesty Intonational), the Supreme Court dismissed the case on the grounds of standing.  I believe none of the plaintiffs whose cases are currently pending, (Klyaman v. Obama and American Civil Liberties Union v. James Clapper to name a few) have standing because they cannot sufficiently prove their injury.  The secrecy surrounding the program inhibits their ability to point to a specific injury.  The plaintiffs cannot point to their phone records specifically being tapped or even queried.  They cannot point to direct violations of Constitutional rights.  They are simply relying on general disclosures provided by the leaked documents.  Now with public FISA court decisions, Americans can see what is specifically being challenged and how the court has ruled on those challenges.

     It is still unclear what Congress' role in this ongoing reform effort will be.  Their role should not be forgotten in all this.  Given the current gridlock, Obama should be skeptical about forfeiting some authority over to Congress because these programs may become subject to extreme scrutiny given many outspoken legislators who oppose the President and his policies.  These reforms announced by President Obama are still subject to enforcement discretion by the Department of Justice in how they are carried out but the president did provide a time table for metadata reform - March - when congressional re-authorization is due. 

     This is not a sweeping reform that will receive passing grades from civil liberties groups but it is certainly a start.  It is still important to point out that while transparency is good and important, some programs must remain secret for the protection of Americans.  As President Obama stated in his speech today, "the point of intelligence is to gain information that is not available to the public," and that these agencies cannot function without secrecy.         

No comments:

Post a Comment