Early in the week, things were looking good for the National Security Agency. 60 Minutes gifted the government an hour-long infomercial, and the newly completed report from a review board that the White House stacked with a handful of intelligence insiders was rumored to have proposed only cosmetic reform. Even so, the administration had decided to keep the report private until January, when President Obama plans to lay out what changes, if any, he’ll make to the intelligence programs.
By Wednesday afternoon significant cracks had opened in the NSA’s defenses. The first came courtesy of Judge Richard Leon, a George W. Bush appointee who ruled Monday that the bulk collection of telephone records “almost certainly” violates the Constitution. The second appeared when the administration decided to release the forty-six recommendations made by the President’s Review Group on Intelligence and Communications Technologies to the public.
In more than 300 pages, the panel argues for reforms to the nation’s intelligence apparatus that are far more comprehensive than expected. It calls for the government to shift its database of call records to private companies, and to strengthen the criteria that make such data available for search; for changes to the structure of the NSA and the Foreign Intelligence Surveillance Court (FISC) that rules on the agency’s requests for surveillance authority; for the government to “make clear” that it will not undermine global encryption standards; and for greater protections for foreigners, including an extension of the Privacy Act of 1974 to non-US persons.
“There is a lot in this report for a reformer to like,” Senator Ron Wyden, one of leading advocates for reform, said in a statement. Senator Mark Udall, another critic of the NSA, called the recommendations “sweeping,” and said, “They generally embrace the reforms that I have been advocating for several years, in many cases against vociferous opposition from the Administration.”
Neither ruling ensures substantive changes within the NSA. An appellate court could overturn Judge Leon’s opinion. Obama may ignore the recommendations, which still leave open substantial holes. The report fails to address the legality of the NSA’s programs, from both constitutional and statutory perspectives. Many of the recommendations are strong in theory, and short on detail of how they could be enforced in light of the agency’s repeated willingness to bend the rules to suit its needs.
Taken together, though, the court ruling and the panel’s recommendations undermine the government’s defense of its surveillance activities in powerful ways. Both challenge assertions that the data dragnet is a national security imperative; that the record of our phone calls is only a benign dump of data rather than key points in the constellation of our daily lives; that security and civil liberty are at competing ends of a policy stick; and that the greatest threats facing US citizens are from traitorous leaks and media misrepresentation, rather than the surveillance programs in question.