Barton Gellman’s explosive story in last Thursday’s Washington Post revealed an unnerving audit of the National Security Agency that showed, among other things, that the federal government “broke privacy rules thousands of times per year” in conducting extensive and “unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order.” Thus was put convincingly to bed the now-obselete notion that the NSA’s claim on the privacy of the righteous was merely declaratory.
Contrary to the self-satisfied insistence of America’s national-security apologists, none of the excuses made on behalf of the NSA are reassuring. To both their credit and discredit, people in the United States continue to exhibit a definite fear of accusing public servants of mendacity. It is therefore apparently beyond the pale to suggest that President Obama was “lying” when he promised that the “transparent” NSA has not been “actually abusing” its power and that “we don’t have a domestic spying program.” For the sake of this column, I shall defer to the tradition.
#ad#Nevertheless, if Obama was in fact not lying, then there remain only two reasonable options as to why his explanations and the truth are so far removed from one another: Either the president of the United States is so genuinely and worryingly out of touch with his own NSA that he has no idea what is going on, or his conception of what constitutes “abuse” is appreciably different enough from everyone else’s that he is unsuited to the high office he holds. As The Atlantic’s Conor Friedersdorf helpfully clarifies: “The 2,776 incidents of illegal surveillance” that the audit revealed “don’t mean that just 2,766 people had their rights violated — in just a single one of those 2,776 incidents, 3,000 people had their rights violated,” sometimes because operators inadvertently started tracking all calls into Washington, D.C. If this is not “abuse,” what is?
Similarly unreassuring is the revelation that the majority of the offending “incidents were unintended, involving either violations of standard operations or failures of due diligence.” Well, one might ask, “so what?” That governments are inexorably incompetent is not an excuse. The inevitability of incompetence in fact buttresses one of the more trenchant arguments against the state’s creating and operating a vast and unaccountable surveillance machine. At a news conference earlier this month, the president aimed to mollify critics, promising that the NSA wasn’t “listening in on people’s phone calls or inappropriately reading people’s e-mails.” To those of us who do not want the government mass-collecting information, it is of no consolation whatsoever that the NSA broke the president’s promise only by “mistake.” Whether a majority will share this view remains to be seen, however. The country, as so often, appears more or less evenly divided between those of us who find the new revelations deeply vexing and those who steadfastly refuse to express anxiety unless they can actually hear jackboots.
Earl Warren’s dour prediction that “the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual” has proven prescient, and those who saw danger and not hysteria when the NSA scandal broke have been proven correct. Moreover, we can now see that the NSA’s defenders were foolish in their rush to paint this as a mere case of bad management that a more engaged president could fix. I do not expect most Americans to get fully on board with me and my worldview, but I can now say with some confidence that there are serious problems with the NSA. Could we not all agree at least that it needs reform?
Alas, there are serious impediments to such change. It is now obvious that this president is philosophically incapable of prioritizing civil liberties, as anyone who has ever heard him speak at length should already know. Such as they exist in this humorless second term, satirists enjoy fixating on the president’s vocal stutters and his interminable repetitions of “let me be clear.” Yet the real hallmark of President Obama’s stunted welteanschauung is the ease — even enthusiasm — with which he tells adoring crowds that “we can’t wait!” and boasts haughtily that “if Congress won’t act, I will.”
Historically, this approach is not new — in fact, it may be the norm. William Pitt observed in the 18th century that “necessity is the plea for every infringement of human freedom” and has long been the “argument of tyrants.” It is not new in America, either, and conservatives should accept that the elevation of national security über alles started in earnest in the modern era with George W. Bush. Nevertheless, the Left shares a great deal of the blame for its continuation in the Obama era. Process, oversight, constitutionality, and government checks and balances matter all the time — not just when it comes to security. Given the manner in which Obama has been encouraged to behave, it should come as no surprise that Congress cannot and will not rein in the president — nor that the president behaves as he does.
Possessed by the idea that Congress is just too “crazy” to govern, the Left has at best indulged Obama’s overreach and at worst encouraged him to bypass the usual constitutional processes. Cast your minds back to last summer, when the president, to the cheer of progressives, unilaterally instituted amnesty, à la DREAM Act, even though Congress had firmly rejected that legislation. Or think back to earlier this year when, worried that the legislative branch might exercise its enumerated role and refuse to assent to an increased debt limit, the full panoply of progressive journalists — assisted by Harry Reid — elected to spend their days trying to find a means by which Obama might circumvent the Constitution.
When it comes to the NSA, I share the concern of many on the Left. But there is a certain irony that, with a few notable exceptions, the same people who tolerate the president’s riding roughshod over Congress’s legislative and fiscal prerogatives simultaneously express incredulity at his excesses in the one area — national security — that is the executive’s job. When the executive branch intrudes in areas it doesn’t belong — and the president’s fans readily indulge him — it’s no surprise that it is guilty of excess in the realm in which has a legitimate constitutional claim.
Progressives calling for the equivalent of a Church Committee to look into the behavior of the NSA will first have to convince the Democratic leadership in the Senate to stand up for their branch of government, and then to put the integrity of the Constitution before the interests of their party and their agenda. This is unlikely to the point of impossibility. Yet, given prevailing Republican attitudes to national security and the makeup of Congress, if Democrats do not step up to the plate, we will probably be stuck with the regime that Gellman’s audit described. Yes, the critics of the NSA were right, and its defenders were wrong. But which of them will help reverse the problem?
— Charles C. W. Cooke is a staff writer at National Review.