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N.S.A. reforms do not correct greatest abuses

Staff Columnist

Published: Tuesday, January 21, 2014

Updated: Tuesday, January 21, 2014 23:01

Last Friday, President Obama gave a speech in which he pledged to institute several reforms to the NSA’s controversial surveillance program. Throughout the speech, he emphasized the importance of intelligence gathering to our national security, but also asserted the need to balance national security concerns with our fundamental civil liberties. Though some of the reforms are indeed a step in the right direction and the tone of the president’s message seems promising, few steps are being taken to address the most flagrant abuses of the program.

Among the beneficial reforms include increased oversight of the intelligence community by senior executive officials. This will prevent the NSA from acting in ways that are inconsistent with the policies and goals of Congress, as occurred when the agency conducted surveillance on German chancellor Angela Merkel. The president also pledged to make the intelligence community more transparent and accountable by declassifying some of the actions of the FISA Court. He has also promised to reform the collection of communications made by foreigners and increase the transparency of national security letters (requests for information from companies requiring said companies not to disclose the request to its subject).

Though these reforms will be beneficial and, if implemented correctly, will likely increase the transparency and accountability of government, the president failed to adequately address public concerns with the NSA’s collection of telephone data. The president has proposed a few possible solutions that would end the government’s holding of telephone metadata. He has proposed that either the telephone providers or some third party hold the data with government using it as needed. Fortunately, the president expressed hesitation at the prospect of a private third party exercising a government function in the bulk collection of telephone data for national security purposes. The use of a third party would not solve the problem; it would simply place a middleman between the government and telephone providers. This third party would do the bulk collecting currently done by the NSA and would likely work in deep collusion with the government, functioning as a government agency in all but name only. Having the telephone service providers hold their own business records is the most reasonable and appropriate, yet the government likely fears that will make intelligence gathering more inefficient as they will have to contact a number of service providers instead of querying a bulk database.

Conspicuously absent from all the president’s commitments to reform was commentary on the level of access the NSA has been given to telephone records by the FISA Court. When the government has reason to believe that an individual is involved in activities harmful to the national security of the United States, it may seek a warrant from the FISA Court to take appropriate surveillance activities. Perhaps the most alarming abuse in the NSA’s collection of telephone records is the FISA Court’s blatant disregard for the Constitution’s restrictions on warrants. The Fourth Amendment reads “…no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The FISA Court has granted warrants for the NSA to seize and collect the telephone records of every person using the service, not merely those whom the government has probable cause to suspect of terrorist activity. There is no probable cause for seizing the records pertaining to citizens not suspected of terrorism. Nor does the court particularly describe the things to be seized. It seizes all records, not the particular records connected with its suspect. This would be akin to a warrant being issued to seize the financial records of all clients of a bank, when only a few are suspected of committing financial crimes. The president assures us the government will no longer hold the telephone data, but unless major changes are instituted in the way the FISA Court grants access to these records, our civil liberties will continue to be violated.

In his speech, the president repeatedly stated that we must balance security and liberty. The Constitution admits no system of balancing. The Bill of Rights is not merely a factor on one side of a scale, but clear restrictions on government invasions of our inalienable rights. Benjamin Franklin once said, “They who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” While it is important for the NSA to take actions for our security, we should not let it violate our fundamental liberties.

 

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