Championing Responsible National Security Policy

Will the president end spying on Americans?

Originally published on The Hill's Congress Blog.

On Friday, President Barack Obama will give a highly anticipated speech on reforming surveillance activities by the National Security Agency (NSA).

U.S. Government spying on everyday Americans must end—anything short of this fundamental reform will be insufficient. The President’s Surveillance Review Board was unpersuaded by the unproven claims that these programs are essential to fighting terrorism, as are Sen. Patrick Leahy (D-Vt.) and Rep. Jim Sensenbrenner (R-Wisc.), and dozens of other members of Congress.

President Obama simply hasn’t made the case for the NSA surveillance programs. I don’t expect he will Friday, either. Instead, I think he’s likely to engage in a bit of old-fashioned fear mongering. It’s long been an effective tool. The trouble is this: how do you question secret evidence?

But now, after having been misled, if not outright lied to, perhaps the American people are ready to question secret evidence and secret law that threatens our liberties in the name of national security. Recent polling suggests this is the case.

To be fair, it is no easy task to balance between national security and our rights under a constitutional democracy. But that’s why it can’t be left only to those overwhelmingly preoccupied with the former. The balance requires an informed debate. Real reform requires more information, not disinformation. Real reform means an end to secret law.

And though not expected, the president can and should make public his administration’s interpretations of the laws being used to fight terrorism. There is no legitimate national security rationale for keeping the American people and Congress in the dark about how the Obama administration is interpreting the laws Congress has passed. To start, the memos by the Justice Department’s Office of Legal Counsel and the opinions by the Foreign Intelligence Surveillance Court must be made available to the public in unclassified form.

Congress is still not satisfied by the information provided by intelligence officials. It’s very telling that the omnibus spending bill includes reporting requirements on the scope of NSA surveillance and details of terrorist attacks thwarted by these activities—if any (see pages 8 and 9).

After a near-monopoly on oversight by the Intelligence Committee leadership, it has been very helpful to have the Judiciary Committee and other concerned members of Congress engaged. Unfortunately, it took the leak of classified information by whistleblower Edward Snowden to peel back the curtain and wake the slumber.

If Snowden had not blown the whistle, there would be no speech from the president tomorrow, no public discussion about the balance between national security and liberties—and no opportunities for reform.

But smart money is on no awards for Snowden tomorrow. Also not expected is a correction of the record by President Obama. He has said that Snowden had “safe channels” to make the disclosures of NSA surveillance. That is simply not the case. There were no legal protections for Snowden had he chosen to go to Congress, the Inspectors General, or even the president himself. In fact, earlier NSA whistleblowers used legal channels that weren’t safe. Tom Drake was even prosecuted, wrongly.

And so, what about other potential Snowdens? If the President wants to stop leaks of classified information, he ought to pledge to protect, not prosecute, intelligence community whistleblowers. And, as the President’s Review Group recommended, provide whistleblowers with truly safe channels for disclosing wrongdoing—to independent entities outside the intelligence community. There should be no doubt about protections of ANY disclosure of potential government wrongdoing to ANY member of Congress, to the Office of Special Counsel, or even the Privacy and Civil Liberties Board.

As has been reported, the president is expected to punt the most significant reforms to Congress. While we hope for more leadership, an open door is welcome. Really, it isn’t practical to presume that the executive branch will hold itself fully accountable. Congress must act to protect the liberties of the American people.

But will they? I can’t imagine why one might be skeptical about Congress taking action . . . But even in recent memory, Congress has put aside partisan gridlock to pass major reforms to restore constitutional rights and make the government more open and accountable. In 2012, they did just that when they upgraded whistleblower protections for most federal worker—oh, except for the intelligence community because of opposition by House Intelligence Committee Chair Mike Rogers (R-Mich.).

Now, there is an impressive, growing coalition of Republicans and Democrats in Congress who may not agree on anything else, but agree that the communications of Americans should not be swept up in bulk by the government.

Perhaps the president’s tepid proposals will galvanize them. The USA FREEDOM Act seems to be the right reform at the right time. We hope the president will support it.