3 unoriginal thoughts on the NSA revelations

Back in the day, when your humble blogger wasn’t writing under the Foreign Policy masthead, a story so big would come across the transom that even if I didn’t want to blog about it, I felt that I had no choice. To not blog about the Very Important Topic was to engage in some kind of willful denial.

Since moving to FP, I’ve been in the blissful position of bypassing the domestic politics story du jour because, well, it didn’t have much to do with foreign policy.

Alas, I can’t do that with these NSA stories coming out of the Guardian and the Washington Post — and the multiple responses by the director of national intelligence. For the first time in a while, this is a story that I feel compelled to blog about. Go read Stewart Baker’s take elsewhere at FP for a defense of the program. I confess to being somewhat more interested in the peripherals. So my reactions, with links:

1) Say what you will about these programs, they appear to be legal and politically legitimated. One of Jack Goldsmith’s primary criticisms of the Bush administration’s counterterrorism programs was that they were jury-rigged by an executive branch without the support of Congress or the courts. A sustainable counterterrorism policy requires the support of the political branches of government.

Say what you will about PRISM, but by all accounts Joshua Foust is correct:

While on its surface, this order — which authorized the secretive National Security Agency to collect data on phone calls placed by Verizon customers for a period of three months — seems blatantly illegal, the reality is that Congress has been enabling and legalizing such surveillance for years.…

Rather than challenging the administration’s authority to secretly interpret and enact laws, however, Congress instead twice authorized them to keep everything a secret. Last year, Ron Wyden, a Democrat on the Senate Intelligence Committee, tried to prohibit secret legal rulings. He got voted down. That same year Senator Jeff Merkley, also a Democrat, added his own amendment to the renewal of the 2008 wiretapping law. His amendment was voted down by a strong margin in both parties.

Similarly, Ezra Klein and Evan Soltas note this a.m.:

The administration’s response is that the program is legal and is overseen by both Congress and the courts. They also gesture towards, but don’t really identify, “numerous inaccuracies” in the reports.

If the reports of how these programs work are wrong then the reports are wrong. But if not, it’s true that these programs might well be legal under existing law. They might well have been subject to congressional oversight. That’s even scarier.

It speaks to a systemic acceptance of this kind of surveillance across the law and the Congress and the oversight courts. It means this is not the action of an overzealous NSA or even an overzealous administration but the consequences of a broad redefinition of the government’s domestic surveillance powers — one that has managed to stick across both the Bush and Obama administrations, and one that will thus be that much harder to uproot.

This explains the congressional reaction to yesterday’s news stories, which overwhelmingly defended NSA activities.

Surely, now that this is public, however, this will change, right? I don’t think so. If you dig into the latest New York Times/CBS poll, you find pretty robust support for President Barack Obama’s counterterrorism policies. So you have a policy that the executive, legislative, and judicial branches have all signed off on, with support from the American people. That doesn’t make the policy the right one — but it does make it legitimate.

2) This is a bipartisan policy. In light of all these revelations, it’s worth going back and reading Goldsmith’s May 2009 essay in the New Republic on the Obama administration’s continuities with the Bush administration’s counterterrorism policies. Here’s the section on surveillance in full:

In the summer of 2008, candidate Obama voted to put President Bush’s unilateral warrantless wiretapping program, which he had opposed as an abuse of presidential power, on a legally more defensible statutory basis. Obama supported the bill even though it gave telecommunication firms that cooperated with President Bush immunity from lawsuits, a provision Obama disliked. In office, President Obama has not renounced or sought to narrow any of the surveillance powers used by the late Bush administration, and has not sought legislation to reverse the telecom’s immunity. Nor has he yet acted to fulfill his campaign pledge to significantly strengthen the Privacy and Civil Liberties Board that oversees and protects civil liberties in intelligence gathering. The Obama surveillance program appears to be identical to the late Bush era program.

Looking through the rest of Goldsmith’s article, I’d say that he was right and Dick Cheney was wrong in early 2009 about the Obama administration’s counterterrorism policies. Whether this is an example of the power of institutional path dependence or not I’ll leave to the commenters.

3) Why are the leaks springing now? As MSNBC’s Chris Hayes tweeted last night:

I am as fascinated by the story *behind* these NSA leaks as the substance itself.

— Christopher Hayes (@chrislhayes) June 7, 2013

There’s been a — well, not a gusher, but let’s say torrent — of leaks coming out in recent days on U.S. surveillance programs. In the wake of scandals that emerged last month, and Bradley Manning’s trial this month, this
is very … interesting. I have no explanation for it, and I’m not implying anything either substantively or politically sinister. But I hope people smarter and more interested in this story than me will puzzle it out.