THE BLOG

The President and the NSA

01/19/2014 01:45 am ET | Updated Mar 20, 2014
  • Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago

In his January 17 speech on the NSA, President Obama observed that, "In our rush to respond to a very real and novel set of threats" after the terrorist attacks of September 11, 2001, "the risk of government overreach -- the possibility" that we might inadvertently "lose some of our core liberties in pursuit of security -- became more pronounced." He explained that now that we are more than a decade past that event, it is time for the nation to review the programs that were adopted in the wake of those attacks and "to make some important decisions about how to protect ourselves ... while upholding the civil liberties and privacy protections that our ideals -- and our Constitution -- require."

"This effort," the president cautioned, "will not be completed overnight," but he emphasized that it is important for "the American people to know that the work has begun." To that end, he announced "a series of concrete and substantial reforms" that he intended either to adopt himself under his authority as president or, where appropriate, to call upon Congress to enact through legislation.

How good a beginning has he made? I am in a reasonably good position to weigh in on that question, because I had the privilege of serving as one of the five members of the Review Group that President Obama appointed in August to advise him on these issues. The Review included individuals with a wide-range of divergent experiences, values, and expertise. It included, for example, both a card-carrying member of the ACLU (myself) and a former Deputy and Acting Director of the CIA (Michael Morell). After months of grueling work, the Review Group produced a 300-page report ("Liberty and Security in a Changing World") that included 46 unanimous recommendations. Those recommendations -- or at least some of the most important of them -- provided the foundation for the president's address.

After offering an important and valuable framing of the challenge our nation faces in attempting to reconcile our deep commitments to both liberty and security, the president turned his attention to several specific recommendations. I will comment on three of them.

First, as the president noted, the most controversial surveillance program at present is the Section 215 telephone metadata program. 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.

The NSA holds this vast amount of metadata in its own computers. When NSA analysts find that there is a reasonable and articulable suspicion that a particular phone number is associated with terrorism, the NSA is permitted to "query" the database to find out if that number (usually belonging to a foreign person) has been in touch -- directly or indirectly -- with any phone number in the United States that is independently believed to be connected to a possible terrorist.

In 2012, the last year for which a full year's records were available, the NSA queried the database for 288 different numbers. In 16 instances, the suspect number was found to be in touch with another suspect number in the United States. In those 16 instances, the information was then passed on to the FBI for further investigation. In the seven years since this program was created, it has not provided any link that has proved necessary to prevent a pending terrorist attack. For that reason, some critics have argued that the program should be abandoned. 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 have a fire in seven years.

On the other hand, the Review Group recognized that this program poses a huge danger of government abuse. The collection of vast amounts of telephone metadata can reveal all sorts of highly private information about how we lead our lives, and misguided government officials might well be tempted in the future to use that database for impermissible, illegal and unconstitutional purposes. We therefore concluded that it is essential to prevent that from happening.

To that end, we recommended that the 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, we recommended that no one should be able to access the database without a court order. With those changes in place, we concluded that the potential benefits of the program could be preserved while reducing dramatically the potential risks to privacy and civil liberties.

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. This is a huge step forward. Critics have objected that the president did not lay out the details of how private parties would control the data, but as our Report noted, this is a complicated -- but soluble -- question. The president therefore directed that steps should be taken to resolve those issues expeditiously and to transition to the new model as soon as possible. This approach is wholly consistent with our recommendations.

Second, the Review Group recommended 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. The FISC was created in the late 1970s to bring judicial oversight for the first time to foreign intelligence surveillance. Before then, it was assumed that the president had authority to authorize such surveillance without any judicial approval or review. One reason for that assumption was that ordinary federal courts do not have top secret security clearances and therefore cannot themselves have access to such information.

The FISC is a special court that has top secret clearances and that can therefore oversee foreign intelligence surveillance investigations. 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, we recommended that the FBI should no longer be permitted to issue National Security Letters without first obtaining a judicial order, in the absence of an emergency. NSLs enable the FBI to require banks, telephone companies, Internet providers, credit card companies, and the like to turn over the records of specific individuals when the FBI determines that they are relevant to a national security investigation. The FBI issues approximately 20,000 NSLs each year. The process is highly secret and remains so for decades after the fact.

Our judgment was that, in order to ensure the integrity of the program, NSLs generally should not issue without prior judicial approval. The FBI resisted this proposal vehemently. In its view, such a requirement would impair the FBI's ability to move quickly and efficiently. We rejected that contention, especially in light of the emergency exception. The FBI argued further that because prosecutors in ordinary criminal cases can issue subpoenas to obtain similar information without a court order, it made no sense to have a more burdensome procedure for national security investigations. We disagreed with that position, mainly because of the intensive secrecy surrounding the NSL process. 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.

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.