Fasten your seat belts. We've seldom seen a more sudden reversal of public policy on any issue than we saw this week with the National Security Agency. And it's all in the right direction.
Off the front pages for a couple of months while the media overdosed on glitches with healthcare.gov, the NSA's wholesale spying operation is suddenly back in the news big time because of two events: a damning decision by a conservative federal judge and rejection by a presidentially appointed panel of intelligence experts.
Ruling in the case of Klayman v. Obama, U.S. District Court Judge Richard Leon, a George W. Bush appointee, concluded that NSA's collection of "metadata" on every phone call made by every American, anywhere, anytime – a program strongly defended by the Obama administration – was likely unconstitutional and a violation of the Fourth Amendment, which protects us against "unreasonable searches and seizures." In his colorful decision, Leon said the administration's arguments in support of the massive collection of data on ordinary Americans was "almost Orwellian." Were he told about it, suggested the judge, founder James Madison would be "aghast."
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What's most significant about his decision is that Judge Leon ignored the fact that the plaintiff was legal gadfly Larry Klayman, who once sued his own mother and who filed a lawsuit claiming President Obama was not a natural-born citizen and, in this case, claimed the NSA was "messing" with him personally. Instead, Leon looked at the heart of the case – the massive collection of data on persons not suspected of any crime – and concluded he could not imagine a more "indiscriminate" and "arbitrary invasion" of our right of privacy. Leon also challenged the program's usefulness, noting the government "does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack."
Judge Leon ordered the NSA to stop collecting phone records of Klayman and other plaintiffs in the case, but then stayed his order to give the Obama administration time to appeal his decision – an appeal which must now be tailored to reflect the second big development of the week: a sharply critical report on NSA's activities by a five-member intelligence panel.
Tasked by President Obama in August to examine NSA's operations, the Review Group on Intelligence and Communications Technologies did just that – and didn't like what they found. Their 46 recommendations to the president include scrapping the entire program. Instead, phone records would be stored by phone companies themselves and made available to the government only after a court ruled there was sufficient evidence of suspicious activity to warrant such a search. The group also called for replacing the military head of NSA with a civilian, subject to Senate confirmation, and naming a public-interest lawyer to represent consumers in all cases brought before the Foreign Intelligence Surveillance Court (FISC).
Underscoring the need to be ever vigilant about protecting civil liberties while fighting terrorism, the intelligence review panel declared, "Free nations must protect themselves, and nations that protect themselves must remain free." And in response to intelligence agency arguments that advances in technology make wholesale spying more acceptable, panel member Richard Clarke warned, "Just because we can, doesn't mean we should."
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So, in one week, NSA's wholesale phone data collection has been called unconstitutional by a federal judge and ruled improper by a panel of intelligence experts. This should give President Obama all the political cover he needs to do the right thing: Stop bowing to the intelligence agencies, follow the lead of his experts, stop channeling George W. Bush and adopt the curbs on domestic spying he once boldly advocated as senator from Illinois. Firing NSA chief Keith Alexander and Director of National Intelligence James Clapper, architects of NSA's phone-snooping program, is a good place to start.
While he's at it, President Obama should also rethink the administration's criminal pursuit of Edward Snowden. The fact is, there would be no judge's ruling, no review panel, no national conversation on intelligence-gathering, no public knowledge of NSA's expanded activities – if Snowden hadn't released his trove of documents. And everything Snowden warned us about has turned out to be true. Surely, it's time to stop condemning Snowden as a runaway criminal and recognize him for what he is: a patriotic whistleblower who broke the law, yes, but who did so in pursuit of a very old-fashioned concept: that citizens have a right to know what their government is up to.