Conservatives could react to President Barack Obama’s NSA speech today with a collective “whew,” sop their brows, and say it could have been a lot worse. President Obama did not give in to the pleas of the antiwar Left and cripple the NSA completely, or end the collection and analysis of telephone metadata. He should receive some credit for a speech that recognized the long American history of signals intelligence — the interception of foreign communications — and its great benefits during the Revolutionary War, the Civil War, WWII, and the Cold War. Critics who want the NSA’s activities shut down should read about the Battle of Midway, where U.S. cryptographers intercepted the Japanese fleet movements, or the 9/11 Commission report, which details how American inability to track terrorist communications inside the U.S. allowed the hijackers to go undetected.
But that said, President Obama’s speech is an unfortunate example of a president’s seeking to avoid the responsibilities of the office that he wanted so badly. He seeks to place the NSA under unprecedented restrictions, producing little gains in privacy at the cost of a reduction in our security. His most sweeping change is his order to the intelligence community to begin preparing for a “transition” to a new system where the the government will not collect and store phone-call records. It is the comprehensive collection of all calling records into one database and the ability to search them quickly that allows the government to uncover links between a safehouse in Yemen, for example, and potential terrorists abroad. Break up the database into pieces and the government cannot track down the chain quickly, giving terrorist cells the ability to cover up their tracks by changing phone numbers, tossing out cell phones, and staying on the move.
But that is exactly what President Obama wants to do. He doesn’t want to have the responsibility to collect and keep all of this information — a responsibility he shoulders because he is the head of the executive branch and commander-in-chief, vested with the responsibility to protect the nation from foreign attack. But because of worries about privacy and the rights of foreigners outside the United States, he is considering either having the private telephone companies keep these records or — in a truly fanciful idea — creating some vague third party to hold the database of calls. This will only slow down our intelligence and law enforcement as they seek to find terrorists inside the U.S. who do their best to blend into normal civilian life, and lead to an incomplete and imprecise picture of their activities.
And all for what? President Obama’s central proposal gains little in the way of privacy. Congressional oversight, judicial review, and a special presidential commission revealed no actual abuses of the NSA program for political purposes, commercial gain, or even personal advantage. There were an isolated number of mistakes made, as with any large technological system — and far fewer errors and mistakes, I might add, than have occurred with the Obamacare insurance system or the IRS reviews of tea-party groups. Our privacy rights as citizens are not enhanced because, as the Supreme Court has noted, we do not have constitutional rights over information we willingly hand over to third parties — in this case, the telephone numbers and information we disclose to the telephone companies themselves. In fact, we may be opening our information to more snooping, because not only NSA employees, but technicians at the phone companies, such as Verizon and AT&T, will have access to these huge databases. Privacy might be more harmed by increasing significantly the number of people at the companies who are allowed access to this information than by keepign it with the small number of tightly overseen NSA officials.
In fact, the only NSA employee who has abused the system and revealed private information is Edward Snowden. It would be the greatest mistake of all to shake-up one of our government’s most successful anti-terror operations because of his law-breaking. But unfortunately, President Obama is heeding the narrative of the anti-war Left that praises Snowden as some kind of hero, instead of the traitor that he is.
— John Yoo is Emanuel S. Heller Professor of Law at the University of California, Berkeley.