Photograph: J Scott Applewhite/AP
James Clapper, the director of national intelligence, has now admitted he gave the "least untruthful" answer to a direct question in March about the extent of surveillance on US citizens. The admission sets up a critical test of Clapper's relationship with the congressional committees that oversee him – committees the Obama administration is relying on for its defense of the surveillance efforts.
The Obama team is expressing support for Clapper as criticism of him mounts. "The president has full faith in director Clapper and his leadership of the intelligence community," ...At least one member of Congress is calling for Clapper's head. On his Facebook page, Justin Amash, a Michigan Republican, wrote that Clapper "lied under oath" to Congress.
GREG SARGENT, WASHINGTON POST
Most columnists, editorialists and civil liberties organizations agree at this point that the revelations about the NSA gathering of phone records and internet info are deeply troubling — either in terms of the overreach of the programs, or the secrecy shrouding them, or both.
But what can be done about it in policy terms? Is there a way to continue giving the government the surveillance tools it says it needs to ensure national security, even as we do a better job safeguarding Americans’ civil liberties?
As it turns out, the answer may be Yes. What isn’t getting the attention it deserves is that civil libertarians are not calling for a complete end to the surveillance the government says it needs to continue exercising. They are simply calling for a narrowing of it — one that would better balance the need to protect the American people with the need to guard Americans’ right to privacy.
Here, with the help of Michelle Richardson, legislative counsel for the ACLU, are steps that could be taken to mitigate current government overreach:
Narrow the scope of the relevant statute. This isn’t likely to happen, because it would require an act of Congress, and many members of Congress have staunchly defended the current NSA programs. But narrowing the statute is probably the only way current NSA overreach can be reined in, Richardson tells me. What would that entail?
The gathering of phone records is the result of the government’s interpretation of section 215 of the Patriot Act, which expanded the government’s ability to collect records while lowering the standard required to allow it, in ways civil libertarians believe violates the 4th Amendment. This statute could be narrowed by moving to what Richardson calls a “suspicion-based” standard. Under this standard, the government could not do a massive open-ended dragnet compilation of phone records. Instead, it could get a court’s permission to gather the phone records, i.e., the meta-data, of someone reasonably suspected of being a terrorist or spy — or someone who has been contacted by one of those people, Richardson argues. Info could be gathered on a group of people suspected of those activities, or even on a suspected entity (such as a building out of which terrorists or spies are suspected of operating).
Under this standard, the government could continue collecting the phone records even of Americans not suspected of anything, since such a search would result in the gathering of records on everyone the suspects were contacted by, including innocents. But that search could only be initiated by a reasonable suspicion about a particular person, group, or entity. This would balance national security with a more reasonable — but not perfect — defense of Americans’ privacy rights.
As for true emergency situations, Richardson says, the government’s ability to get emergency orders from the FISA court could be maintained, even amid a statutory fix.
Bring more transparency to the current programs. Ron Fournier writes: “Tell us what our government is doing, and why.” Is this possible? To some degree, yes. Barring the above statutory change, the government could bring more transparency right now to the programs that are currently operating. For instance, Richardson notes, we know phone records are currently being gathered in a data-base? What about, say, emails and financial records? How broad is the program, anyway?
The Director of National Intelligence has clarified that the government does not have the power to listen in on calls or monitor content of communications. However, Richardson notes, the government could be more forthcoming about the guidelines that determine whether it is able to look at meta-data of Americans not suspected of anything. What is done with all of this information, and what dictates how or whether it is accessed?
Key questions remain about the scope and inner workings of this program. The administration — and members of Congress — have said more disclosure could imperil their effectiveness by tipping off would-be terrorists. But as Richardson notes, they are likely proceeding from the assumption that they are being subjected to extensive surveillance already, so that excuse rings hollow. “The 9/11 plotters communicated in code,” Richard says.
Also: The FISA court decisions granting government surveillance authority should be disclosed, with appropriate redactions. “The bottom line is there shouldn’t be secret law,” Richardson concludes.
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To be sure, national security experts might quarrel with the civil libertarian argument that these principles can be safeguarded without compromising security. And far too little is known about how these programs work to be sure about how — or whether — a proper balance can be achieved. But the basic fact that needs to be understood is that civil libertarians are not calling for an end to surveillance. They just want us to at least make a serious effort to get that balance right. Which Obama himself has articulated as a goal, at least in theory.