Douglas Cohn: Obama, Congress face big decisions on reining-in surveillance

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WASHINGTON — President George W. Bush left office with a very low job approval rating, but voters still credited him with keeping the country safe after the 9/11 attacks on New York and Washington. In those first days and months and even years, a second attack seemed inevitable. When it didn’t happen, the most plausible explanation seemed to be that surveillance systems were thwarting al Qaeda. These systems were authorized by the Patriot Act, which passed with almost unanimous bipartisan support and signed into law by Bush in October, 2001.

Surveillance programs launched then and conducted under great secrecy continued into the Obama administration, where they have grown and expanded along with the increased technological capability of the National Security Agency. A “metadata” program that sweeps up every American’s cell phone calls and combs through numbers to search for patterns would have remained secret if it weren’t for NSA contractor Edward Snowden defying his security oath to reveal what the government was doing.

Snowden is in Moscow as a guest of the Russian government and unlikely to return to the U.S. anytime soon, but the revelations that he made public stung President Obama, who had pledged to run an open and transparent government. In addition to the bulk collection of data, Snowden revealed that the NSA eavesdropped on German Chancellor Angela Merkel’s mobile phone, a huge embarrassment for Obama, and a major affront to Merkel who grew up in Soviet-dominated Eastern Germany and recoils from state sponsored spying.

With the realization that NSA’s capabilities had gone beyond the realm of political acceptability, Obama named a 5-person independent panel to scrutinize the NSA’s practices. They met with the president last week to deliver their report with its 46 recommendations. It probably didn’t please Obama that one key recommendation had leaked before they met, which is to place the NSA under civilian control. The White House rejected that but said the president is open to the report’s other 45 suggestions, which include a range of options to increase oversight and add safeguards to protect civil liberties.

The advisory panel questions whether the “metadata” collection of phone calls is necessary and effective. They don’t call for halting the program but say that it should be subject to greater restraints. Earlier last week, federal judge Richard Leon on the D.C. District Court ruled the program unconstitutional, but given the national security sensitivities and knowing his decision will be appealed, he put the ruling on hold, so it has no immediate impact.

The panel includes people with career-long experience in national security and intelligence. Richard Clarke served both Presidents Bush and Clinton, and former CIA Director Michael J. Morell has been around the block on these issues. Their views have to be taken seriously along with those of academics in the field of constitutional law, civil liberties and privacy. The White House says Obama will take their report and their recommendations with him to Hawaii over the Christmas break, and sometime in late January, speak to the American people about the judgments he reaches.

There is no doubt that the NSA will face some greater restraint, but how much and how meaningful is yet to be determined. Obama is on the record saying that the surveillance programs that have gotten so many people upset have stopped terrorist plots and saved lives. He is going to be reluctant to rein them in too much, and he also knows the decision is not wholly his. Any significant change in these programs’ operations will require congressional action, and it’s hard to imagine Republicans and Democrats alike cracking down on the NSA when terrorism against the U.S. remains such an active threat, and when it emanates from so many unstable places in the world.


U.S. News Syndicate, Inc.