Obama Sidesteps Phony NSA Debate
Talk to any official from the National Security Agency and a few things are immediately clear. The NSA is frustrated that it has had to devote months dealing with the fallout from Edward Snowden’s leaks, especially since they believe they’ve done nothing illegal. Agency officials are also upset that the Snowden affair is being compared to past intelligence scandals in which individual citizens were deliberately targeted for their political beliefs. They stress that their collection is limited to general information about phone calls, not the substance of phone conversations, and that analysts must go through several procedural hoops in order to see it. Moreover, they believe this metadata is critical to counter-terrorism, citing dozens of cases in which it helped foil plots in advance. Some high-level officials even claim that the intelligence community could have thwarted the September 11 attacks had the program been in place in the 1990s.
For all these reasons, they are bewildered by the ferocious criticism they have faced for many months. Why would anyone oppose a program that helps prevent terrorism while protecting civil liberties?
Critics of the NSA, however, are just as frustrated. They accuse the agency of paying lip service to the Constitution while routinely collecting vast amounts of information on law-abiding citizens. Critics cite a federal judge’s secret ruling in 2011 that the agency was not doing enough to stop analysts from querying data on Americans, and that it was misleading Congress about the extent of its activities. They also point to a recent district court judge’s opinion that the metadata program almost surely violated the Fourth Amendment. The program, he argued, was “almost Orwellian.” Nor do critics believe it has been important for national security. The White House claimed that it was critical in more than fifty counterterrorism cases, but independent analyses found that this number was wildly exaggerated, and that in almost every case other intelligence and law enforcement methods were much more important.
Thus the critics are just as baffled as supporters. Why do the NSA and the administration cling to a program that poses a serious threat to privacy, especially given that it doesn’t seem to be very effective?
To some extent both sides are suspicious of the others’ intentions, and their mutual mistrust has been fueled by hyperbolic media coverage. But the real reason the two sides are at loggerheads is that they are having a false debate. The question about privacy, for instance, is not really about whether the NSA has violated Americans’ civil liberties through the collection of metadata, but whether it can be trusted to hold this data without misusing it in the future. Critics have posed reasonable questions about the problem of protecting civil liberties at a time of rapid technological change in commercial communications as well as the intelligence community’s ability to intercept them. But given the intensity their criticisms—references to Orwell are now commonplace—NSA officials feel as if they’re already being convicted for some future sin.
The argument about the utility of metadata is similarly misleading. Harvesting metadata can help analysts map networks that operate across borders in order to assist other intelligence and law enforcement efforts, but it is not a silver bullet for counterterrorism. Metadata cannot stop terrorist attacks on its own, and holding it to that standard is unfair. The administration did itself no favors by overselling the value of metadata in such cases, to be sure, but this does not mean that it has been useless. It’s also important to note that metadata is useful for more than just counterterrorism. Efforts to break up transnational proliferation networks, along with counterintelligence work to uncover industrial espionage in the United States, stand to benefit greatly from metadata analysis. So painting the future of the NSA as a contest between civil liberties and counterterrorism is both misleading and incomplete.