The just-revealed surveillance stretches the law to its breaking point and opens the door to future potential abuses
And we know that the just-revealed National Security Agency program does not actually listen to our calls; it uses the phone numbers, frequency, length and times of the calls for data-mining.
So, why is it that many Americans, including me, are so upset with the Obama administration gathering up telephone records?
My concerns are twofold. First, the law under which President George W. Bush and now President Obama have acted was not intended to give the government records of all telephone calls. If that had been the intent, the law would have said that. It didn’t.
Rather, the law envisioned the administration coming to a special court on a case-by-case basis to explain why it needed to have specific records.
I am troubled by the precedent of stretching a law on domestic surveillance almost to the breaking point. On issues so fundamental to our civil liberties, elected leaders should not be so needlessly secretive.
The argument that this sweeping search must be kept secret from the terrorists is laughable. Terrorists already assume this sort of thing is being done. Only law-abiding American citizens were blissfully ignorant of what their government was doing.
Secondly, we should worry about this program because government agencies, particularly the Federal Bureau of Investigation, have a well-established track record of overreaching, exceeding their authority and abusing the law. The FBI has used provisions of the Patriot Act, intended to combat terrorism, for purposes that greatly exceed congressional intent.
Even if you trust Obama, should we have programs and interpretations of law that others could abuse now without his knowing it or later in another administration? Obama thought we needed to set up rules about drones because of what the next President might do. Why does he not see the threat from this telephone program?
The answer is that he inherited this vacuum cleaner approach to telephone records from Bush. When Obama was briefed on it, there was no forceful and persuasive advocate for changing it. His chief adviser on these things at the time was John Brennan, a life-long CIA officer.
Obama must have been told that the government needed everyone’s phone logs in the NSA’s computers for several reasons.
The bureaucrats surely argued that it was easier to run the big data search and correlation program on one database. They said there was no law that could compel the telephone companies to store the records on their own servers.
If the telephone companies did so, government and company lawyers then certainly said, they would become legally “an agent” of the government and could be sued by customers for violating the terms of their service agreements.
Finally, Obama was certainly told, if the NSA and the FBI had to query telephone company servers, then the phone companies would know whom the government was watching, a violation of need-to-know secrecy traditions.
If there had been a vocal and well-informed civil liberties advocate at the table, Obama might have been told that all those objections were either specious or easily addressed.
Law already requires Internet service providers to store emails for years so that the government can look at them.
An amendment to existing law could have extended that provision to telephone logs and given the companies a “safe harbor” provision so they would not be open to suits. The telephone companies could have been paid to maintain the records.
If the government wanted a particular set of records, it could tell the Foreign Intelligence Surveillance Court why — and then be granted permission to access those records directly from specially maintained company servers. The telephone companies would not have to know what data were being accessed.
There are no technical disadvantages to doing it that way, although it might be more expensive.
Would we, as a nation, be willing to pay a little more for a program designed this way, to avoid a situation in which the government keeps on its own computers a record of every time anyone picks up a telephone?
That is a question that should have been openly asked and answered in Congress.
The vocal advocate of civil liberties was absent because neither Bush nor Obama had appointed one, despite the recommendation of the 9/11 Commission and a law passed by Congress.
Only five years into his administration is our supposedly civil liberties-loving President getting around to activating a long-dormant Privacy and Civil Liberties Oversight Board. It will have a lot of work to do.
Clarke is a former counterterrorism adviser to Presidents George H.W. Bush, Bill Clinton and George W. Bush.
