NSA is in Trouble for Good Reason

Jeremy Rabkin*

The surveillance programs conducted by the National Security Agency are in trouble. The fundamental reason is that the American people no longer have confidence that data collected by the government will be used solely for national security purposes. Abstract legal arguments won’t restore public trust, because the distrust is not grounded in abstract concerns about executive power or the precise application of the Fourth Amendment. The prevailing atmosphere of distrust will be hard to dispel because, given what has emerged in the past two years, distrust is an entirely reasonable response.

The scale of public suspicion was dramatized by the vote in the House of Representatives on July 24, where the so-called Amash-Conyors Amendment, prohibiting the NSA from conducting data-mining of phone call records, failed by only a dozen votes. A resounding majority of Democrats (111-83) voted for the Amendment – flaunting their suspicion of a program defended (and conducted) by a president of their own party. The NSA’s longstanding surveillance authority was saved by Republican votes in the House. But even Republicans, traditionally the party of strong measures for national security, were notably divided: more than 40% of Republican House members (94 of 228) defied the calls of their party leaders and endorsed proposed restrictions on the NSA.

An extensive survey by the Pew Research Center (released on July 26) confirmed that the House vote reflected a larger shift in public opinion. Indeed, it understated the scale of the shift. It found that a near majority of Americans (47%) now worries that efforts to detect terror threats have become a threat to civil liberties, while notably fewer (35%) now think these efforts do not go far enough to protect against terrorism. A similar poll in October 2010 found only 32% worried about threats to civil liberties against 47% who worried that monitoring of terror threats did not go far enough. So there has been a swing of opinion by 15 percentage points in public opinion on the programs in less than three years. Overall, the swing of opinion among Republican voters was 18 percentage points—leaving them now as likely as Democrats to worry about threats to civil liberties from U.S. government surveillance over threats from terror attacks from inadequate intelligence. The swing among Republicans identifying with the Tea Party was nearly twice that—a 35 percentage point swing (from 20% worrying about surveillance threats to civil liberties in 2010 to 55% in July 2013).

People do, after all, have reason to be distrustful—based on information in the public record. The first thing that has become widely known is that, whatever secret information the government may collect, it does a very poor job at keeping secrets. Edward Snowden triggered the current debate by releasing information about NSA programs. Some of what was publicized in his name may already have been known, some of what was reported might have been misleading or distorted. But if the government has not denied the truth of his claims about spying on U.N. meetings and various meetings of foreign governments. How did Snowden gain access to these secrets as a low level contract employee? Why was somebody of limited skill and no proven loyalty given access to these secrets? How was he able to down-load masses of information from government computers without being detected, before he fled to China and then Russia with his secrets?

What makes the whole episode more remarkable is that it came a full three years after Army Private Bradley Manning was arrested for forwarding troves of secret diplomatic correspondence to WikiLeaks. Somehow the United States government had arranged a security system in which an army private was given access to a vast array of classified documents of no relevance to his own responsibilities—and no one noticed that he was using government computers to gain access, over an extended period, to these documents. The consequences were not trivial: by revealing secret diplomatic reports, he put world leaders on notice that nothing they say to American diplomats can be kept confidential. That will surely be a burden on American diplomacy for years to come. A military judge ultimately sentenced Manning to 35 years in prison, even though he was acquitted of charges that he had deliberately set out to aid America’s enemies.

But for all the evident harm caused by these leaks, the government seems to have done no serious review of how they occurred. At his sentencing, Manning’s lawyers revealed that he was a very troubled young man who had confided to military superiors that he wanted a sex change operation. Was an army private with severe psychological problems really a safe person to trust with sensitive secret materials? How was it that no one thought about whether to give such a person access to the whole range of American diplomatic correspondence? How was it that after the uproar resulting from the leaks, no one was fired, no one even thought to ask probing questions of the Secretary of State or the Secretary of Defense?

Secretary of Defense Robert Gates did protest – in bitter language (“Shut the F—up!”)—when White House officials started boasting to the press about details of the raid that had killed Osama bin Ladin in May of 2011. There was some protest about extensive reports, published in The New York Times in June of 2012, revealing details of the STUXNET computer virus, deployed by the CIA against the Iranian nuclear program. The administration promised to stop the leaks and punish the leakers. No one has been charged, let alone punished—even though it seems clear, given accounts in both stories about what the President himself said in intimate meetings, that some of the information could only have come from a small circle of suspects.

Add it all up and there is a very clear pattern: The government is not serious about keeping its own secrets, so why believe it would be careful with other people’s secrets? And if information gleaned from surveillance is not confined to those using it for proper national security purposes, it may be deployed for improper purposes. Is that far-fetched? It’s a nearly irresistible suspicion.

In March of 2012, a gay rights advocacy group published the tax return of the National Organization for Marriage (“NOM”), an organization opposing gay marriage. Included were the names of donors to NOM. Someone in the IRS leaked the document. Other conservative organizations also had their tax filings leaked. Perhaps the leaks were perpetrated by rogue agents, like Bradley Manning or Edward Snowden. That would still be worrisome—since they haven’t been identified and indicted, more than a year later.

But we can’t be at all confident that such abuses of the IRS simply reflected the initiative of low-level operatives. That was the initial explanation for the IRS policy of delaying approval for Tea Party groups seeking tax exempt status before the 2012 elections and that story has since been refuted by new revelations of directives from IRS officials in Washington. White House promises to “get to the bottom” of IRS abuses have so far gone nowhere. It has not, it seems, been a priority to stop them. Officials even at higher levels must be aware that Barrack Obama’s career has been boosted in the past by leaks of information supposed to be confidential. Most notably, Obama’s path to the Senate in 2004 was greatly smoothed by the mysterious (still unexplained and unpunished) release of sealed court records relating to the divorce proceedings of Jim Ryan, forcing the strongest potential Republican candidate to drop out of the race. Officials in the Obama administration do not seem to know there is anything wrong with revealing secrets, when that serves the immediate political needs of the top man.

So, no surprise that conservative groups now distrust the NSA. Former Vice President Cheney admonished, in an August appearance, “the NSA is different from the IRS.” It’s true that continuing revelations about the scale of NSA surveillance have not yet indicated anything that looks like partisan abuse. But what has come out is that the Director of National Intelligence, James Clapper, lied to Congress when he testified in March of 2013 that the NSA did not collect individual communications of American citizens. We have learned that the NSA has collected tens of thousands of individual email messages and phone messages, including a great many involving American citizens in the United States. We have also learned that the FISA court—in previously secret rulings—rebuked the government for misrepresenting its programs when seeking authorization for new surveillance undertakings. And everything we have learned comes from submissions which NSA, itself, has chosen to release. We do not know what more abuses it may still be concealing.

So there is much reason for concern. But there is also much reason to worry about terror threats and much reason to think that NSA surveillance can be extremely helpful in detecting and thereby helping to deflect threats from terrorists. The most alarming finding of the PEW poll is that 70% of Americans believe NSA data collection is not restricted to national security efforts but “also used for other purposes.” And one of the most telling findings is that even among those who believe this, 43% still support the program (against 53% seeking restrictions). You can worry about NSA abuses—and still conclude we need to have the NSA exercising vigorous surveillance.

The President has proposed adjustments in the procedure for authorizing NSA surveillance, including provision for an outside advocate to challenge government requests before the FISA court. I do not see how anything useful can be achieved by tinkering with the authorization procedures. They will still remain secret and therefore one-sided, at least from the point of view of actual targets of the surveillance.

The focus should be not so much on limiting what information government can collect but on limiting the way it uses that information. It’s one thing to have government know what numbers you call (or what email addresses you contact or what websites you frequent) and something else to have the government leak this information to people with other agendas than national security. For the proper purpose, people will share very confidential information with doctors or lawyers which they wouldn’t want others to know.

The main recourse has to be government self-correction: those who are found to be leaking information should be punished—severely and in public. It is already a crime for government employees to release confidential information (18 U.S.C. §1905). Congress has thought it proper to underline the point in special situations—as with release of financial records by any “farm credit examiner” (18 U.S.C. §1907). We might enact a new statute to encourage and facilitate relevant prosecutions, emphasizing the special offense of improperly circulating national security data damaging to American citizens. Vigorous, exemplary prosecutions might help to restore public trust.

But given the Obama administration’s flagrant public assertions of a general authority to decline to enforce existing laws —declaring broad-ranging dispensations from immigration law and its own health care law—it will be hard to reassure people that such abuses will actually be punished. Therefore, we ought to consider giving victims of national security leaks a private right of action to sue officials who are responsible for release of personal, confidential information shown to be damaging to the plaintiff. We might also specify liability for reckless management of such confidential information, by higher officials who did not personally circulate such information but failed to take precautions against abuse by their subordinates.

There are obvious objections. Lawsuits of this kind might expose honest officials to harassing litigation. Concerns about personal liability might inhibit officials from sharing intelligence information within the government, even for proper purposes. A workable statute would have to define the liability in ways that might limit such unwelcome effects. It may be that, after closer consideration, Congress will conclude that there is indeed no safe way to impose personal liability for such bureaucratic abuse in an area where officials must constantly make sensitive, disputable decisions about what information should be shared and with whom.

But anyone who wants to save the NSA must focus on reassuring the public that information collected for national security purposes will only be used for national security purposes. The Obama administration has not exerted much effort to provide that reassurance. It is not clear it does want to save the program, which its own core constituencies do not support. But we won’t save the NSA by measures that provide just enough gesture toward reform to deflect blame from the Obama White House for mounting public suspicions.


*Jeremy Rabkin is a Professor of Law at George Mason University. He serves on the Board of Directors of the U.S. Institute of Peace (originally appointed by President George W. Bush in 2007, then appointed for a second term by President Barack Obama and reconfirmed by the Senate in 2011).