Edward Snowden’s Vindication? All Three Branches Considering NSA Reform

How things change in a single week.  Just last week, I was taping a debate on Edward Snowden and the NSA with, among others, General Michael Hayden, former head of the NSA.   Defending the legality of the NSA program, Hayden repeated the familiar administration tag line that “all three branches of government” had blessed the NSA’s programs.  As Hayden put it in a nice turn of phrase, it was “a Madisonian trifecta.”

I wouldn’t try to cash in that trifecta ticket yet, General Hayden.

This week, the first federal judge to address the merits of the NSA’s phone metadata program, in which the agency collects records on every Americans’ phone use and stores them in a massive database for five years, declared the program “almost certainly” unconstitutional, and issued a preliminary injunction against the program’s application to the plaintiffs before him.  And on Wednesday, a panel of experts appointed by President Obama recommended some 46 reforms to the NSA’s surveillance programs, including an end to its practices of collecting all American phone data and of exploiting encryption vulnerabilities to hack into internet service providers’ lines.  In between, Silicon Valley’s leading entrepeneurs met with the president at the White House to protest that the NSA’s actions are not only violating the privacy rights of their customers, but undermining the nation’s economic interests – by driving foreign customers away from American companies now deemed suspect for their cooptation by the NSA.

Meanwhile, multiple reform bills are pending in Congress. Some, like Senator Diane Feinstein’s, are cosmetic only, and would essentially ratify the status quo.   But others, like the bill sponsored by Senator Patrick Leahy and Representative Jim Sensenbrenner, would mark real reform.

So much for Hayden’s “trifecta.”

So what caused this change?  In two words: Edward Snowden.  Had he not disclosed the existence of the program, none of the reforms now urgently being pressed by all three branches would be on the table.  It turned out that the only thing left out of the much vaunted checks and balances Hayden cited was the American people.  Before Snowden, we had no idea of the scope of what the NSA was doing in our name and behind our backs.  Now we have no excuse.  How this issue is ultimately resolved turns on how we react. We can preserve our privacy and our security.  But only if we insist on reform.  It’s the National Security Agency, after all, not the National Security and Privacy Agency.   Snowden has demonstrated that the agency will care about privacy only if we demand that it do so. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).