Since the first week of June, when the Washington Post and London’sGuardian, doing the work that journalism is supposed to do, published detailed news of the National Security Agency’s gigantic programs of cell-phone and Internet information-gathering, the world has been riveted. These were scoops of a high order. Yet they were more in the nature of confirmations than of revelations. The existence and the ambitiousness of what was referred to in this space, two weeks before the Post and Guardian stories, as the N.S.A.’s “data collection and analysis on a global scale” have been known in broad outline for a long time.
In the closing years of the last century, newspapers and broadcasters reported extensively on a program known as Echelon, under which the N.S.A. and allied intelligence agencies used satellite receivers, underseas-cable taps, and powerful computers to download and search a hefty proportion of the world’s electronic traffic. (“If you made a phone call today or sent an e-mail to a friend,” Steve Kroft began a “60 Minutes” report, in February of 2000, “there’s a good chance what you said or wrote was captured and screened by the country’s largest intelligence agency.”) After 9/11, when such activities expanded exponentially, the press did its best to keep up. A sample, from a national newspaper’s front page of May 10, 2006:
The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.
The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans—most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
In 2010, the Washington Post’s own reporters, after a heroic investigative effort, concluded, “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.” This month’s leaks to the Post and the Guardian add rich texture to the picture, but what is genuinely new is that, confronted with unmistakably authentic N.S.A. documents, the government, up to and including the President, has begun to feel compelled to come clean—or, at least, less dirty.
Old news or new news, the big news is bad news in the eyes of many, including not a few who usually view President Obama’s policies sympathetically. “The administration has now lost all credibility,” a Times editorial keened. “Is it just me,” Al Gore tweeted, “or is secret blanket surveillance obscenely outrageous?” The United States, a Nation headline announced, is now “A Modern-Day Stasi State.” References to Nixon and Orwell proliferated. There was parallel indignation on the non-morally-equivalent right. “This is the biggest snooping enterprise against Americans ever,” Rush Limbaugh declared, one that exemplifies the Obama Administration’s “totalitarian nature.” Glenn Beck’s Twitter feed hailed the “NSA patriot leaker” as “a real hero” and “the man for which I have waited.” A slightly cooler head, Senator Rand Paul’s, thinks that the President “views our Constitutional ‘right of the people to be secure in their persons, houses, papers, and effects’ as null and void.”
There are reasons to be concerned about intelligence-agency overreach, excessive secrecy, and lack of transparency. But there are also reasons to remain calm. From what we know so far about these N.S.A. programs—and that is a caveat that should condition virtually every statement and judgment about them, including those you are now reading—they have been conducted lawfully. The threat that they pose to civil liberties, such as it is, is abstract, conjectural, unspecified. In the roughly seven years the programs have been in place in roughly their present form, no citizen’s freedom of speech, expression, or association has been abridged by them in any identifiable way. No political critic of the Administration has been harassed or blackmailed as a consequence of them. They have not put the lives of tens of millions of Americans under “surveillance” as that word is commonly understood.
“There is every reason to believe the federal government has been collecting every bit of information about every American’s phone calls except the words actually exchanged in those calls,” the Times editorialized. True. But that’s a very big “except.” The bits that are collected consist of the time and the duration of the calls, along with the numbers and, potentially, the locations of the callers and the called. This “metadata” is digitally stored. But none of its individual components are ever seen by human eyes except in the comparatively tiny number of instances in which a computer algorithm flags one for further examination, in which case—at least, since 2008—a judicial warrant is legally required. “The government can easily collect phone records (including the actual content of those calls) on ‘known or suspected terrorists’ without logging every call made,” the Times argued. True again—but circular, and beside the point. A primary (and legitimate) goal of the programs, after all, is to find and identify unknown, unsuspected terrorists, either after or, preferably, in advance of an actual attack.
The critics have been hard put to point to any tangible harm that has been done to any particular citizen. But that does not mean that no harm has been done. The harm is civic. The harm is collective. The harm is to the architecture of trust and accountability that supports an open society and a democratic polity. The harm is to the reputation and, perhaps, the reality of the United States as such a society, such a polity.
On May 23rd, President Obama made clear in a passionate speech his readiness to reconceive the so-called war on terror. “This war, like all wars, must end,” he said. “We must define the nature and scope of this struggle, or else it will define us,” he said. One aspect of that struggle, “expanded surveillance,” he said, raises “difficult questions about the balance we strike between our interests in security and our values of privacy.” Given the month’s disclosures, Mr. President, you can say that again.
If it is time to reëxamine the struggle, then plainly, as Obama implied, it is time to reëxamine the means by which the struggle is waged. Calling for a national commission can be the last refuge of the high-mindedly perplexed, but this is one instance when such a commission—independent, amply funded, possessing subpoena power, and with a membership and a staff deeply versed in both national security and civil liberties—may be precisely what is needed. The N.S.A. programs represent a troubling increase in state power, even if—so far, and so far as we know—they have not occasioned a troubling increase in state wrongdoing. Obama’s “difficult questions” have a new urgency. Are the programs truly efficacious? Do they truly provide an extra margin of safety sufficient to justify the resources poured into them, to say nothing of the domestic and international anxieties they inevitably provoke? Is it wise to entrust so many of their activities to the employees of private companies, which are ultimately answerable not to the United States and its Constitution but to corporate stockholders? Did it make sense to construct an intelligence behemoth that apparently cannot operate without giving an enormous number of people—more than a million—top-secret security clearances? And in what ways, exactly, might an ill-intentioned yet formally law-abiding Administration use its powers for nefarious purposes? From what we know so far—well, we know far too little, still. ♦