THE SHORTCOMINGS revealed by Edward Snowden were not primarily at the National Security Agency (NSA), where he worked as a contractor. For the most part, the NSA apparently has performed well and as instructed. It was Congress and the administration that widened and acquiesced in the NSA’s powers without adequate debate and disclosure. A presidential task force that reported last week gets this distinction right and has come up with mostly valuable recommendations.
“Because our adversaries operate through the use of complex communications technologies, the National Security Agency, with its impressive capabilities and talented officers, is indispensable to keeping our country and our allies safe and secure,” the task force notes near the outset of its 304-page report. That may seem obvious, but it hasn’t gotten enough attention in the debate over the NSA’s authorities, and it can be too easy to forget as the Sept. 11, 2001, attacks recede in memory. When the United States’ most dangerous foes are terrorist groups that wear no uniform and respect no state boundaries, the ability to monitor communications is crucial to the United States’ security and that of its allies.
But as the task force also notes, the NSA’s almost unfathomable capabilities can impinge on the privacy of Americans and non-Americans alike. Many of the trade-offs that must be made as a result can be presented to the American people without a risk to operational secrecy. That was true of the decision to have the NSA collect and store telephone metadata — the record (but not the contents) of every call we make. This collection is legal — approved by federal judges who meet in secret — but it came as a surprise to most Americans. So a key recommendation of the panel is for legislation “requiring information about surveillance programs to be made available to the Congress and to the American people to the greatest extent possible (subject only to the need to protect classified information).” The panel also wants to reduce the government’s ability to require secrecy from subjects of investigations and from phone companies told to furnish information.
The panel says the collection of bulk metadata may be useful to national security, but recommends that private firms or a new entity separate from the NSA store the information, with the NSA allowed to search the database for information about specific people only with judicial approval. The report urges the appointment of a public interest advocate “to represent the interests of privacy and civil liberties before the [Foreign Intelligence Surveillance Court],” which meets in secret and is the court that gave the NSA go-ahead for the metadata collection. It recommends, as have we, more consideration of the potential costs of spying on foreign leaders, especially allies. It urges the strengthening of the Privacy and Civil Liberties Oversight Board, which was designed to ensure that trade-offs between national security and liberty receive due consideration but is relatively toothless.
Among other things, the board, which would be renamed the Civil Liberties and Privacy Protection Board, would become “an authorized recipient for whistle-blower complaints.” Presumably, that would provide a legal route for people such as Mr. Snowden who believe the surveillance state is out of control. We don’t share his alarmist assessment or his disparaging view of the United States’ purposes, but his revelations exposed a weakness of oversight and transparency. The presidential panel’s recommendations offer a road map to a more accountable operation.