With his ruling Monday that the National Security Agency’s data-mining programs are probably unconstitutional, federal district court Judge Richard Leon essentially prodded US policy makers to define the line between national security and civil liberties more clearly. The far-reaching recommendations announced on Wednesday by a special panel appointed by President Obama provide excellent fodder for that discussion, and point the way to a comfortable middle ground.
Leon stayed his own ruling in deference to the national security issues involved and to the need for review by an appeals court. And his opinion, replete with references to James Madison and George Orwell, seemed designed as much to frame the issues as to resolve them. It doesn’t require an extensive knowledge of legal precedents to understand the constitutional issue here: The Fourth Amendment bans “unreasonable searches and seizures” and requires warrants “describing the place to be searched and the persons or things to be seized.”
The NSA, in working through phone companies to amass a giant database of information on phone calls, seeks to identify patterns of communication among people with suspected links to terrorism. Since the calls aren’t listened to, and only people suspected of terrorism have their records examined, does the mere process of data collection violate the Fourth Amendment? Leon thinks so, and many Americans agree.
The five-member panel appointed by Obama, made up of legal and terrorism experts, proposes an intriguing solution: Keep the data in the private hands of the phone companies, and require the NSA to seek permission from a secret court to check the records of individual suspects. Such a move would ease fears that the government was misusing data or targeting people indiscriminately. It would also answer the Fourth Amendment problem of collecting information about individuals’ calling patterns without a warrant.
Other recommendations address NSA policies that aren’t necessarily related to the Fourth Amendment challenge, but still require clearer guidelines. They include more protections for the privacy of noncitizens abroad, including curbs on eavesdropping on world leaders. Some recommendations, like the suggestion that only the president be empowered to order spying on foreign leaders, seem like no-brainers. Others, such as splitting up control of the NSA and the military cyber-command, are more debatable. Americans saw the dangers of agencies not talking to each other in the months leading up to Sept. 11, 2001, and might not want to risk adding more layers to the national security bureaucracy. Obama has already said he wants both functions to be overseen by the same official.
Nonetheless, the panel, which included former deputy CIA Director Michael Morell and former counterterrorism coordinator Richard A. Clarke, deserves great credit simply for presenting options that move the national discussion from fears of unfettered government intrusion on the one hand and uninterrupted terrorist plotting on the other. It should be possible to protect the country while satisfying the Constitution and the entirely understandable desire of law-abiding citizens to be free of surveillance.