How To Reform The NSA

“It’s not enough for me to have confidence in these programs. The American people need to have confidence in them as well.”

Those were President Obama’s words at his August 9th press conference in which he laid out his plans to reform the National Security Agency. And while the President is surely correct that Americans need to be confident in – and, more to the point, to understand – the NSA’s data-collection programs, it is my strong belief that what the President is offering – to increase transparency and accountability in the NSA – is simply not enough.

We need a program that goes well beyond what the President has proposed. The program that will actually provide real reform to the NSA will be a combination of increased review, oversight, transparency and opportunity for individual citizen interaction with the system. Above all else, it will work in concert with the true intent of the 4th Amendment and offer balance between our constitutional rights and the threats – threats that I believe are very real – to America and Americans by terrorists who wish to harm us and our way of life.

Let me be clear, we are facing a crisis that requires immediate attention and action. The President and the NSA have breached Americans’ trust and we risk even further erosion of that trust – not to mention further invasions of our privacy – if there is not immediate reform.

To this end, we just found out today that the NSA has built a surveillance network that covers roughly 75 percent of all US internet traffic. The programs – codenamed Blarney, Fairview, Oakstar, Lithium and Stormbrew – filter and gather information at major telecommunications companies. Needless to say, it is impossible to know how much domestic data the NSA is inadvertently retaining from these programs. And the NSA’s defense that these programs are legal and respectful of Americans’ privacy is just not cutting it.

It is difficult to believe the President’s commitment to reform in the first place as he has so obviously reversed his position over the last few months. Obama said in first press conference on the NSA leaks that there were no abuses within the NSA, only to have to confront the fact that there were, in fact, thousands of abuses within the last year alone. And now he must contend with the fact that 75 percent of internet traffic is policed.

In response to what is obvious overreaching by the NSA, the President proposed the following four point plan two weeks ago: 1) working with Congress to reform Section 215 of the Patriot Act which collects telephone records; 2) to improve confidence in the Foreign Intelligence Surveillance Court (FISC) by making sure that the court is looking at both security and personal liberties issues; 3) increasing transparency by directing the intelligence community to make their work as public as possible, appointing a civil liberties and privacy officer, and creating a transparency website; and 4) forming a high- level group of outsiders to review our surveillance technologies and provide an interim report in 60 days and a final report by the end of the year on our systems and practices.

Based on recent polling numbers, it is unlikely that the President’s proposals will make any difference. A Rasmussen poll found that only 11 percent of Americans believe that the President will act on his promise to scale back and provide more transparency on the surveillance programs operated by the NSA. Thirty percent of respondents said they believed that it is now more likely that their phone calls and emails will be monitored. And just under half – 49 percent – of those surveyed said they believed that nothing will change despite the President’s promises.

These figures do not bode well for President Obama’s chances at success with his reform package.

As Michigan Congressman Justin Amash said on CNN’s State of the Union, “The system is not working.” We need a plan. And not one that almost half of Americans believe will do nothing to help; we have almost no specifics as to how the administration will effect real change.

For starters, the term “greater transparency” has been thrown around in the conversation surrounding the NSA with little explanation as to what it actually means. The NSA’s transparency website is not yet running, despite a promise that it would be launched last week. A page on the existing NSA website simply promises that documentation will be made available “on this website.” This must be rectified immediately.

True to his word, the President released classified Justice Department legal opinions used to justify the NSA’s most sensitive programs. But releasing the documents is not enough – the average person cannot be expected to understand the legal jargon in these papers or have the time to wade through them. To this end, the administration should create a simplified guide to these papers that makes clear what the practical implications of the decisions are in an easily understandable and digestible manner. Posting legal documents with little to no explanation allows the NSA to hide in plain sight.

And while I am hesitant to suggest creating more bureaucracy, we could take a page out of the UK’s book and create an office dedicated to transparency, headed by an independent Transparency Tsar. This role would be distinct from the privacy officer that is meant to work with the FISA court and would, instead, serve as a consistent check on the NSA as well as on the administration itself.

President Obama’s suggestion that he would work with Congress to tighten Section 215 of the Patriot Act is a good one. But we also need the House to have another chance to vote on a measure to curb the NSA in light of new revelations that the agency broke privacy rules “thousands of times each year” by making illegal interceptions of phone calls and emails. This news would surely change the opinion of legislators who may have opposed the measure in the first place.

As far as appointing independent experts to “maintain the trust of the people” when it comes to monitoring communications, it has been suggested that James Clapper, the Director of National Intelligence, could head this team of experts. As Clapper has already admitted to lying to Congress in regards to the scope of the NSA program, he is surely not the man for the job. Independent experts must be found outside the beltway; insiders would only bring more special interests into an already broken system. To this end, an inspector-general process would be useful and should be considered.

Instead of allowing the NSA to go unilaterally to the FISA court, the government should create a role in the FISA court for a citizen’s advocate who could take adversarial positions. This would go a long way toward protecting both security and personal liberty, a task that I do not believe can be accomplished otherwise. Congressman Chris Van Hollen suggested this on CNN. He said, “We should have somebody at the court whose jobs it is, whose responsibility is to make sure they’re putting forth the counterargument. In the court of law, you have two parties. The court itself should make a decision between two arguments. Right now, the (FISA) court is only hearing one argument.”