I am confident that Judge Leon’s decision will be overturned, and that the metadata program will ultimately be upheld by the Supreme Court. The challenge now is for the Obama administration and Congress to resist the media hysteria that the decision will whip up.
Senator Wyden and Representative Jim Sensenbrenner are pushing legislation to prevent the NSA from engaging in the bulk collection of cell-phone records. The intelligence committees oppose these bills on a bipartisan basis. While the proposed laws do not have majority support in either house, they have many vocal advocates who will try to exploit the ruling to gin up support.
While the Wyden and Sensenbrenner bills would undermine national security, some legislation is certain to be approved by Congress over the next few months to tighten up NSA programs and reassure the American people that these programs are not compromising their privacy and civil liberties. It is crucial that the Leon decision not distract from efforts by the House and Senate leadership and the White House to get this right.
More troubling are recommendations by a five-member panel named by President Obama to review NSA programs in light of the Snowden leaks. According to the Wall Street Journal, this panel — which is composed mostly of Obama loyalists — recently sent a report to the White House with several extremely ill-advised proposals. One would prohibit the NSA from collecting this information and instead require telephone companies to retain the data for calls made on their networks; if this became policy, the NSA would have to jump through legal hurdles before obtaining the information, and the data would be much harder for analysts to use. The panel also called for instituting a mutual “code of conduct” on intelligence collection against U.S. allies, and making the FISA court process more adversarial.
We can hope the White House will not be pressured by the Leon decision into accepting the panel’s recommendations and will listen to senior U.S. intelligence officials, who are certain to strongly oppose them.
Judge Richard Leon did his country a disservice by issuing an emotional ruling that amounted to legislating from the bench, and by ignoring testimony from intelligence-community experts on the legality and usefulness of the metadata program. Supporters of this and other intelligence programs damaged by Edward Snowden need to calmly resist this decision and continue to fight against reckless proposals to roll back crucial intelligence programs.
— Fred Fleitz is a former CIA analyst and staff member with the House Permanent Select Committee on Intelligence. He is the founder and chief analyst of LIGNET.com, a global intelligence and forecasting service.