The NSA
Good news, you guys terrorists: the foreign intelligence surveillance court order that authorizes the NSA to collect calling data on every American expires Friday. Also, ambiguous news, you guys: President Obama plans to ask FISA to extend the program for another 90 days, but he will also ask Congress to end it. The secret domestic surveillance program that for the last decade has been totally legal and okay will go away now that we know about it. I’m pretty sure that means the terrorists won. Thanks a lot, Edward Snowden.
Before you get on the phone and tell all your friends and inadvertently the government that happy days are here again, remember that this story could be told another way. President to extend bulk phone surveillance but call for end in future is less heartening news. The only sure thing here is that the NSA will be keeping track of every time you call your grandma for the next three months.
Even when it does get to Congress, the President’s proposed proposal will be one of several bills competing to curtail NSA surveillance. It might not pass—although to worry about that you’d have to believe that the House and Senate might somehow prove hostile to one of Obama’s ideas.
The near certainty that Obama’s proposal will meet with some variety of resistance—obstinate, defiant, knee-jerk, growing, concerted, grimly unsurprising, Tea Party—in Congress forces us to consider several cynical explanations for this announcement. Normally I resist such theories as wild surmise, but I think context merits paranoia here. Some of these hypotheses seem absurd, but what would you have thought in 2008 if I told you that the NSA was monitoring the phone activity of every American? So let’s spin out some scenarios:
- The President wants to end bulk phone data collection by the NSA. I want to believe this one, but it doesn’t jibe with certain known knowns. If he really wanted to end the program, he could wait until its present FISA authorization expires on Friday, skip the renewal, and not have to muck around with an intransigent Congress.
- The President wants to modify bulk phone data collection by the NSA. This scenario takes the White House declaration at face value. Obama believes that we can retain the secret, invisible benefits of the program without blanket surveillance of every American, and he’s asking Congress to do it. This time, Congress will be nice to me, he says to himself as he buys Congress an expensive dress to celebrate his plan to ask it to prom.
- The President wants Congress to take the blame for continuing an unpopular program. This is the second-most cynical explanation I could come up with. If Obama said fire was hot, the House would pass a bill requiring us all to use blowtorches to refrigerate our food. This way, Obama the national security hawk can keep his domestic spying program in disguise as Obama the victim of jerk representatives.
- The President wants us to think Congress has ended domestic phone surveillance. This scenario is almost too depressing to contemplate. But do you remember when Congress first approved bulk collection of phone records by the NSA? Neither do I. The same rationale that allowed Bush to implement the program in 2001—the executive branch can do as it will to protect the nation, and also nobody knows about it—could apply again.
Obviously, this list gets crazier at either end. If you’re looking for a way to read the morning’s news as a sign that the President is trying to trick you, you’ll find it. But the fact that I am willing to even type scenarios (3) and (4) on the internet is a testament to how much the initial revelation of domestic NSA spying has shaken my trust in the federal government.
Our sitting President was fine with bulk collection of phone data for the entirety of his first term in office. He decided the program needed to come to an end at roughly the same time that Snowden told us about it. Maybe that’s a coincidence, or maybe Obama’s attitude toward the 215 program is mostly determined by public opinion. If we accept that hypothesis, we have reason to believe that his plan to end it is a plan to address public opinion, too.
This is perhaps the most depressing aspect of Snowden’s revelations. We learned that the Obama administration may be governing us for our own good—or not, depending on which scenario you like—but it is certainly not governing us with respect. Either the President was putting one over on us or he believed we were too dumb to know about a program to protect us. How must we understand everything he does now?
Well, since you asked, I remember very clearly the summer of 2008 when the warrentless wiretapping FISA rules were up for renewal. I remember wishing candidate Obama would take a stand and I remember being disappointed that he punted on the issue until after the campaign. I also remember Obama’s 2013 presser on national security (just before Snowden emerged) where, for the first time, someone dared suggest the whole AUMF needed to go one day.
What seems to be missing at every turn is a clear chain of accountability and oversight. The CIA is spying on the members of Congress who are investigating it. The NSA has a master switch on the whole telecom infrastructure of the plugged-in world. But just as most people consider it laughable that an artist should ever hope to have possession of his or her recorded material now … most people also agree there’s no reversing the flow of infotech power to the government that builds that infrastructure.
Pardon the run-on sentence, Master Brooks. Our anxiety on this issue is directly proportionate to the ever-growing scope of our cyber-bound lives. Can we encrypt as well as we can search? No better? I’d love to hear what accountability might look like in such a slippery public square.