Commentary Magazine


A Solution in Search of a Problem

The President’s Review Group on Intelligence and Communications Technologies is getting a lot of publicity for its recommendations to substantially scale back NSA surveillance. But reading its report, which has just been released, it’s not obvious what problem the panel is addressing or why its proposed “solution” is an improvement on the status quo.

The report includes a summary of how the government has in the past used the exigencies of war to trample on civil liberties–a theme developed more fully in panel member Geoffrey Stone’s book Perilous Times. All of the usual horrors are cited, from the Sedition Act of 1798, to the detention of Japanese-Americans in World War II, and the CIA/FBI spying on antiwar activists in the 1960s. The panel piously intones: “Too often,  we have overreacted in periods of national crisis and then later, with the  benefit of hindsight, recognized our failures, reevaluated our judgments,  and attempted to correct our policies going forward. We must learn the lessons of history.”

I kept expecting a similar set of excesses to be cited arising from the USA Patriot Act and the heightened activities it authorized on the part of the NSA. I waited in vain. The panel cites no examples–not one–of actual abuses committed by the NSA or other surveillance agencies today. In fact from everything we know the NSA has been scrupulous in its use of metadata. Although it has maintained a vast database of American calls overseas it queried that database only 300 times last year under procedures supervised by both Congress and the courts.

For all of his leaks, Edward Snowden could not cite a single actual example of the NSA spying on someone it wasn’t supposed to be spying on or using the information it attained for personal or partisan advantage rather than to safeguard the national interest. The review group can’t cite a single such example either; it is forced to resort to generalized concerns about “privacy” being invaded by the government, even though the collection of metadata is a lot less intrusive than widespread surveillance by security cameras on the streets or by Internet commerce companies online. In short it seems that we have learned from history and figured out how to collect intelligence without committing the abuses of the past. But that doesn’t stop the panel from recommending steps that will hamper the NSA’s attempts to monitor terrorist groups and other threats to national security.

The headline recommendation is that “that Congress should end such storage and transition to a system in which such metadata is held privately for the government to query when necessary for national security purposes.” The panel claims that “this approach would allow the government access to the relevant  information when such access is justified, and thus protect national security without unnecessarily threatening privacy and liberty.”

This would obviously make searching the metadata more difficult, especially if the government has to contact multiple firms to get data rather than going to a single source. And why on earth do the panel members trust employees of Verizon and AT&T–much less of some potential future private corporation that would hold metadata records from all of the existing telecom firms–more than they trust the employees of the NSA?

Those NSA employees are carefully vetted and overseen and they operate with an ethos of service to the nation. Why should we repose more trust in random telecom company employees, who are motivated (and rightly so) by profits not patriotism, to hold records that the panel believes are so important? Elsewhere in the report, the panel calls for cutting back or eliminating the use of private firms to do background checks on intelligence community employees such as Edward Snowden. But while reining in private firms in one area, the panel seems to be reposing vast trust in them in another area.

Is the principle here that Big Business is more trustworthy than the U.S. government? This is a curious position for a panel appointed by a liberal Democratic administration to take, given that Democrats are normally suspicious of the excesses of big business, and rightly so given the fraud committed by large firms such as Qwest and WorldCom (both, interestingly enough, telecom companies). Are we supposed to believe our data is safer with Bernie Ebbers (the former Worldcom CEO who is now in jail) than with Gen. Keith Alexander, the head of the NSA?

In reality neither big corporations nor the government should automatically be trusted. In both cases safeguards and oversight need to be built in to prevent abuse. Such a system was built after 9/11 and it seems to be functioning well. It’s hard to see why we should mess with something that’s working and run the risk of making life easier for terrorists.

Sure, Snowden’s revelations are embarrassing. But let’s not compound the embarrassment by doing things we will regret later–as happened once before, in the 1970s, when Congress and the Carter administration severely hampered our intelligence capabilities in the wake of a series of scandals. Today, by contrast, the only scandal is that Snowden has turned traitor; there is no sign that the NSA is doing anything it isn’t authorized to do or that the U.S. has become a less free place over the last decade because of its activities. In other words, the review panel is offering solutions to address a nonexistent problem.

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