The Corner

Obama’s NSA Reforms: Giving More Rights to Terrorists than Americans

I appeared on the WSJ’s Opinion Journal today to preview President Obama’s announcement about changes to the NSA’s surveillance programs. According to some reports, the White House plans to make three changes:

1. Give Privacy Act rights to foreigners. 

2. Prohibit the government from collecting telephone metadata and instead require it to ask the telephone companies to conduct searches for the data.

3. Creating an office to challenge search warrants sought from the Foreign Intelligence Surveillance Courts.

In brief, these seem to me to be poor ideas — they’re solutions in search of a problem: There has been no discovery of any deliberate abuses by the NSA of any American’s privacy or constitutional rights as part of these programs. 

The first reform strikes me as ludicrous. Why should foreigners have any privacy rights against the United States government? Privacy is a constitutional right that a citizen has against his own government — I have no more a right of privacy against Saudi Arabia’s government than a Saudi Arabian should have against NSA surveillance. Under the Privacy Act, an American has the right to see the information held on him or her by the government — will Dr. Zawahiri, the head of al-Qaeda, have a right to request his government file now?

The suggestion shows that the Obama administration seems to worry as much about the rights of potential terrorist suspects as it does about the Americans who are their potential victims.

The second change, preventing the NSA from collecting metadata into one comprehensive database, only introduces delay and inefficiency in protecting the U.S. from terrorist attack, without any corresponding benefit for constitutional rights. Keeping the metadata split up among the phone companies will make it difficult for the NSA to comprehensively search phone records for calls linked to suspected terrorists. At the same time, the Supreme Court has long held that there are no Fourth Amendment rights to protect phone-call records, because we have already voluntarily revealed them to the phone companies. It was exactly this attitude that placed restrictions on searching for calling links between some of the 9/11 hijackers who were known to be in the U.S. and al-Qaeda leaders abroad — a discovery that could have revealed the 9/11 conspiracy itself.

The third change shows again an administration that worries more about the rights of suspected terrorists than Americans’ security. Creating an office of lawyers to oppose NSA search warrants before the Foreign Intelligence Surveillance Court actually gives suspected terrorists more rights than Americans. In the normal criminal-justice system, the government seeks a wiretap warrant from a judge ex parte, i.e., without the target present, because notifying the target of the wiretap would be self-defeating, so Americans do not have the right to have their lawyer present when the police seek a wiretap. But under the White House’s suggestion, the government, at taxpayer expense, would provide a lawyer to enforce a right for suspected terrorists that U.S. citizens do not enjoy in normal criminal-justice proceedings.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

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