If ever there were a matter where the Obama administration needs to get its act together, it’s the National Security Agency’s extensive surveillance activities.
Friendly European capitals are up in arms over allegations that the United Stated bugged European Union offices in New York and Washington and employed an assortment of electronic eavesdropping techniques to spy on — um, monitor the communications of — the embassies of France, Italy, Greece, and other allies.
The American public, meanwhile, remains sharply divided about the NSA’s domestic snooping. Or what they know of it, anyway; we still haven’t had a clear, credible explanation of exactly what the agency is doing.
Meanwhile, the administration has sent a number of contradictory and counterproductive signals about NSA-contractor-turned-leaker-extraordinaire Edward Snowden.
As former CIA and NSA chief Michael Hayden observed on Sunday on “Face the Nation,” the NSA controversy raises a crucial question: How does a free society conduct a necessary dialogue about its government’s secret activities?
The administration has sent contradictory and counterproductive signals.
Hayden says President Obama needs to provide more information about those programs, even if that sacrifices some of NSA’s operational effectiveness — and he’s right. Sotto voce assurances may (possibly) suffice with our allies, but it’s not sufficient for a democratic government to say to its own citizens: Trust us, we’re doing what’s needed to keep you safe. Don’t worry, privacy protections are in place.
Obama needs to present the nation with a clearer sense of the NSA’s activities: the various types of metadata (like call records) it monitors or retains; the broad range of deeper digital information, such as e-mails, social-media posts and communications, and search-engine queries it collects or keeps; and what concrete safeguards exist. Further, policy-makers should create an independent oversight panel — one that, unlike the Privacy and Civil Liberties Oversight Board, is not involved in policy development — invested with the authority to monitor the NSA’s programs and report to the American people if they stray beyond clearly articulated boundaries.
Then there’s Snowden himself, with regard to whom this administration can’t get its talking points straight. Its initial warnings to Hong Kong, China, and Russia of serious relationship consequences if they didn’t return Snowden were strangely uncalibrated. It was only after Russian President Vladimir Putin shrugged off those high-handed admonitions that Obama himself set a new tone. Describing Snowden as “a 29-year-old hacker,” the president said that he wasn’t going to let this affair interfere with more important matters he hoped to accomplish with China and Russia.
That remains the most sensible thing Team Obama has said. After all, there was never a realistic reason to think any of the three polities would return Snowden. Our extradition treaty with Hong Kong contains enough gray area to have allowed China, its suzerain, to deny the request even without resorting to technicalities. And we don’t have such a treaty with either China or Russia, which makes it either naive or arrogant to demand that those countries return Snowden.
“With regard to countries with which we don’t have an extradition treaty, that really is expecting a bit much, especially when the crime is seen as a political one and not something like murder,” says local legal luminary Harvey Silverglate. Certainly if a Russian or Chinese citizen were under similar pursuit, it’s hard to imagine an American president returning him.
Americans themselves are ambivalent about whether Snowden should be punished. Imprisoning him for decades, as the Justice Department apparently contemplates, would strike many as profoundly unjust — the very kind of repressive action the United States decries when carried out by other nations.
Indeed, despite our warnings to Ecuador and others about granting Snowden asylum, exile there or in Iceland or a similarly small country, where he’s no longer an irritant in big nation diplomacy, might just be the best of a series of unappetizing options.
Who knows, with a skillful enough hand, the administration might even be able to secure the return of whatever valuables are left among the purloined data — and perhaps even a quiet third-party agreement to limit possible future disclosures.
So far, however, this administration hasn’t demonstrated even a dash of the diplomatic dexterity it would take to accomplish that.