This editorial appeared in the New York Times.
The White House response on Monday to the expanding disclosures of American spying on foreign leaders, their governments and millions of their citizens was a pathetic mix of unsatisfying assurances about reviews underway, platitudes about the need for security in an insecure age and the odd defense that the president didn’t know that American spies had tapped the German chancellor’s cellphone for 10 years.
Is it really better for us to think that things have gone so far with the post-9/11 idea that any spying that can be done should be done and that nobody thought to inform President Barack Obama about tapping the phone of one of the most important American allies?
The White House spokesman, Jay Carney, kept repeating that Obama ordered a review of surveillance policy a few months ago, but he would not confirm whether that includes the tapping of the cellphone of Chancellor Angela Merkel of Germany, or the collection of data on tens of millions of calls in France, Spain and elsewhere.
It’s unlikely that Obama would have ordered any review if Edward Snowden’s leaks had not revealed the vacuum-cleaner approach to electronic spying. Carney left no expectation that the internal reviews will produce any significant public accounting — only that the White House might have “a little more detail” when they are completed.
Fortunately, members of Congress have been more aggressive in responding to two broad disclosures. One, that both the Obama and George W. Bush administrations misinterpreted the Patriot Act to permit the collection of metadata on phone calls, emails and text messages of all Americans, whether they were international or domestic. And, second, that the 2008 amendments to the Foreign Intelligence Surveillance Act were being stretched to excuse the routine collection of data from 60 million telephone calls in Spain and 70 million in France over two 30-day periods.
Legislation scheduled to be introduced Tuesday by Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, and Rep. Jim Sensenbrenner, R-Wis., would end the bulk collection of Americans’ communications data.
The administration has said that such data collection is permitted by Section 215 of the Patriot Act, although Sensenbrenner, who wrote that section, has said it is not. The bill, the U.S.A. Freedom Act, would require that the “tangible things” sought through data collection are “relevant and material to an authorized investigation into international terrorism or clandestine intelligence activities.” They also would have to pertain to a foreign power or its agent, activities of a foreign agent already under investigation or someone in touch with an agent.
Currently, the government conducts metadata collection by periodically vaguely informing a federal court in secret that it is working on security-related issues.
The bill would require a court order to search for Americans’ communications in data collected overseas, which falls under the Foreign Intelligence Surveillance Act, and it would restrict “reverse targeting” — targeting a foreigner with the goal of getting information about an American. The bill would not address spying on foreigners, including such abuses as in the Merkel affair. Those activities are governed by a presidential order that is secret and certain to remain so.
We are not reassured by the often-heard explanation that everyone spies on everyone else all the time. We are not advocating a return to 1929 when Secretary of State Henry Stimson banned the decryption of diplomatic cables because “gentlemen do not read each other’s mail.”
But there has long been an understanding that international spying was done in pursuit of a concrete threat to national security.
That Merkel’s cellphone conversations could fall under that umbrella is an outgrowth of the post-9/11 decision by Bush and Vice President Dick Cheney that everyone is the enemy and that anyone’s rights may be degraded in the name of national security.
That led to Abu Ghraib, torture at the secret CIA prisons, warrantless wiretapping of American citizens, grave harm to international relations and the dragnet approach to surveillance revealed by the Snowden leaks.