Of all the sharp instruments that have in recent years sliced open the conservative movement’s belly and left it fighting for unifying stitches, the most pronounced perhaps has been the question of the National Security Agency and its regimen of surveillance. Since Edward Snowden’s explosive revelations blew suddenly into the news last year, right-leaning types have sought desperately to reconcile their instinctive respect for privacy with their considered interest in security and the law. Often, they have failed to do so. At times, the fissure has even become ugly, yielding a series of set-tos between the traditionalist and libertarian wings that have inspired reports of a much-desired civil war.
Alas, those championing unity may soon find themselves reaching for the bourbon, for, having considered 46 different recommendations, the president will this week decide what shape his NSA-reform program will take, and thus in whose wounds the salt will be rubbed. Whatever he elects to do, one thing seems certain: The agency will be less powerful afterward than it was before. Among the alterations that are reportedly in the cards are requiring the FBI to obtain judicial permission before it may share the NSA’s data, establishing a privacy advocate at FISA, and, most essentially, removing the federal government’s power to store telephone records directly. Providing that these moves do not merely constitute distractions or sleight of hand, they will be welcome and timely — not perfect, no, but a relief for those of us who feared that the security state was destined to dig in and metastasize, thus proving the old maxim that lost liberty is never recovered.
And yet, for all the optimism inherent in the promise of change, there are small alarm bells ringing — for, making its way into a handful of news outlets is the attendant rumor that the president may decide to go one step too far, extending globally the protections of the Privacy Act of 1974 and according to foreigners bulwarks to which they have no claim. This, to put it as lightly as possible, would be a disaster.
In its story on the matter, the Wall Street Journal suggested that such a move would represent
a significant shift in U.S. posture that wasn’t proposed seriously until the uproar overseas in response to disclosures by Mr. Snowden, which suggested that the NSA had built a global surveillance operation that regularly scooped up communications of citizens of countries around the world, including friendly ones.
Since the affair surfaced, I have happily counted myself among the NSA’s staunchest critics. But here I must break ranks with my fellow malcontents and cry foul. The reason that there had previously been no “serious” suggestion that reforming America’s domestic program would necessitate changing its foreign-based regime is that such a proposal is exorbitant — the product of fluffy one-world types who haven’t so much taken a libertarian exception to national-security overreach as folded the revelations into a toxic Weltanschauung that perceives America to be a global bully and force for ill, all alleged threats to the peace to be overblown if not deserved, and the very act of spying as contemptible. If President Obama indulges this instinct, he will be abdicating his most elemental responsibility as the chief executive of the national government: to protect Americans from those who would do them harm.
My criticisms of the NSA’s conduct have been wide-ranging. The sheer scale of its domestic surveillance is deeply disturbing in a country with a constitutional protection against unreasonable searches and seizures, as is the indiscriminate manner in which it has collected information. It is one thing for authorities boasting discrete permission to track individuals who are suspected of particular crimes. It is quite another for the state to turn all Americans into de facto suspects, effectively issuing unconstitutional “writs of assistance” that turn the concept of warrants on its head. Questions have abounded, too, as to whether the NSA has been operating outside of its mission and abusing the terms of its charter; as to whether the director of national intelligence, James Clapper, brazenly lied to Congress when a senator asked him about domestic surveillance; and as to whether President Obama has any real control over his own executive branch. The claim that metadata do not reveal personal information has always been risible, as has the idea that abuse and mistakes don’t matter if they yield only a few victims.
The root of the problem, in other words, has been that an agency that is tasked with spying overseas has turned its attention to the homeland. It has not been that that agency has been doing the job with which it was tasked. The NSA isn’t just allowed to spy broadly outside of the United States; that is precisely what it should be doing. The legal and moral questions that critics have posed to the NSA make sense only within the United States.