Reining in the NSA

Let’s assume we should give the Obama Administration and the National Security Administration the benefit of the doubt. Assume that the communications data they collect will only be used when there’s an actual threat to the national security by a foreign national, and that even then they’ll still get the permission of a court — even if it’s the secretive and unanswerable-to-anyone Foreign Intelligence Surveillance Court — before sifting through that database and collecting names of more people to watch.

Even in that case, do they not see how this affects citizens’ free speech and association rights? Can they not tell how the ability of journalists to serve as a watchdog on government activities is compromised?

As Obama has sought to assuage fears over the scope of the spying programs, he has promised reforms. He has also tasked a special panel — The Review Group on Intelligence and Communications Technologies — with the job of determining what reforms can be made quickly. None of this is being done, of course, with the idea of curtailing surveillance, but with the hope of tweaking the far-reaching programs to make them more palatable to the American people.

And the media is participating in those efforts, somewhat grudgingly, because it’s better to air concerns in a situation in which major reform is not expected than to sit quietly and do nothing.

Our comments to the review group, filed on behalf of 37 organizations, addressed not just surveillance issues, but on the broader questions of how the government harms the public interest by overclassifying information and then punishing those who try to bring abuses to light. (Our comments are available on our web site at rcfp.org/x?C7dS)

But even beyond those issues, it is clear that the federal government must still undertake a fundamental re-examination of how it handles important information and keeps it from the public.

We saw a start to this process over the summer, as the Department of Justice acknowledged it had overreached in how it investigated two reporters who had covered national security issues. Attorney General Eric Holder prepared a report for the president on how he would protect free press interests better in the future, promising that notice to the news media before service of a subpoena for their records would be the norm, and setting a higher bar for prosecutors in making those demands.

But in the meantime, the actual regulations implementing those reforms have yet to be issued, although Justice promises they are coming. (The shutdown of the government certainly didn’t help with the timetable.) And in September, the department revealed that its confiscation of Associated Press phone logs led to the conviction of an FBI contractor for those leaks.

Then, after seeing a reporter’s shield bill pass the Senate Judiciary Committee in September, not much has happened since. Plus, it’s clear that the shield bill, if enacted, would have no meaning to the NSA, which isn’t bound by the same constitutional restrictions — at least when investigating foreign nationals, as it is supposed to do.

This leads many to wonder if the Administration’s push for reform and accountability is sincere. But the important thing now is that journalists don’t let their guard down and keep demanding the protections that we know the press needs in a viable democracy.

Big Brother, George Orwell’s infamous stand-in for a surveillance state, would not have been acceptable just by having a secret court watch over its shoulder. Surveillance of the scope we’ve learned about — and Administration apologists can certainly make the case that we have not reached the truly Orwellian depths — could only be tolerable when it is clearly accountable to the people it is supposed to serve and is rendered unable to trample their rights without consequence.