How the NSA makes the nation insecure

On Dec. 18, President Barack Obama’s Review Group on Intelligence and Communications Technologies released a surprisingly critical report of the United States government’s intelligence practices since 9/11. The immediate reaction to the panel’s 300-plus-page report has rightly focused on its 46 recommendations for intelligence reform, such as ending the National Security Agency’s dragnet collection of Americans’ phone records that seeks to analyze the relationship networks of a minute number of counterterrorism targets. Yet it would be a mistake to pay attention only to the report’s particulars and ignore the very American civil libertarian philosophy animating the panel’s interpretation of what “security,” at its core, means.

The five-member group, comprising privacy, legal and national-security experts handpicked by the White House, does not simply conceive of security as national or homeland security. Rather, it passionately argues for a much richer, and more traditional, understanding of what security means to a free people, emphasizing the people’s Fourth Amendment right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The panel then immediately goes on to correctly equate security with freedom from governmental intrusion. “This form of security is a central component of the right to privacy,” it writes, “which Supreme Court Justice Louis Brandeis famously described as ‘the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.’”

Harbor no illusions: This conception of security as protection from government meddling is a total repudiation of what the U.S. intelligence apparatus has done since 9/11. Because of whistle-blower and former NSA contractor Edward Snowden’s disclosures, we now know that the U.S. intelligence community systematically undermines and sabotages all people’s right to be left alone. On top of collecting the records of Americans’ phone calls domestically and abroad, the NSA sifts through the content of email and text communications to and from the U.S., compels American technology companies to provide the personal data of their international customers without a warrant, hacks into the unencrypted data links between Internet companies’ servers overseas, injects vulnerabilities into global encryption standards, collects daily location data from billions of mobile devices worldwide, collected the records of Americans’ email and Internet usage until 2011, and on and on. (Full disclosure: I work for the American Civil Liberties Union, which provides legal representation for Snowden.)

The panel’s skepticism and civil libertarian streak even extend to that post-9/11 truism, always misguided if not downright malicious, that there must be a balancing act between national security and personal privacy. “The idea of ‘balancing’ has an important element of truth,” says the report, “but it is also inadequate and misleading.” The panel goes on to argue that certain forms of surveillance — such as those that restrict First Amendment rights of speech, religion and association, or that engage in industrial espionage — are always illegitimate, regardless of whether the spying is conducted domestically or abroad. The panel also confirms what Sens. Ron Wyden, D-Ore., Mark Udall, D-Colo., and Martin Heinrich, D-N.M., have argued all along: The NSA's call-records program, as constituted, violates Americans' civil liberties with no tangible security benefit. In other words, the American people were secretly subsidizing their own surveillance and the worldwide destruction of privacy without receiving anything in return.

The president’s review panel, again in agreement with core, long-standing American ideals, also recommends respecting the privacy rights of foreigners. Or as Columbia Law School professor Eben Moglen recently articulated it in a series of talks about the U.S. government’s global surveillance apparatus, “The people of the United States do not want to become the secret police of the world.” Most Americans, in their heart of hearts, know this to be true, because what the NSA has done is self-evidently contrary to this country’s most fundamental ethos: that it is the right of the people, all people, to be free of and secure from illegitimate government interference, whether overt or covert. They do not believe in, or consent to financing, a government that respects neither the privacy of its people nor the privacy of those outside the territorial confines of the U.S. Fear, stoked by the national security establishment, may have persuaded Americans to mistakenly accept a one-dimensional and impoverished concept of security as it was promoted after 9/11.

But no longer. Snowden courageously made sure of that.

The whistle-blower’s revelations have injected a bright light into the U.S. intelligence community’s black box, illuminating the spooks’ house for the first time in decades. What Americans, and the world, have discovered is that they have as much (if not more) to fear from government overreach as from terrorists, whose whole strategy relies on committing atrocities to provoke their targets to join them in the abyss. Tragically, Al-Qaeda succeeded magnificently here, goading the U.S. into erecting not only a global surveillance state but also a global killing campaign. It should not be surprising that global civil society, according to a Dec. 13 WIN/Gallup International poll, continues to see the U.S. as the greatest threat to world peace.

It is not too late for the U.S. to redeem itself and re-emerge as a democratic country wedded to the rule of law, one that believes true, lasting security stems from liberty rather than fear. Once again it is in our power, as Thomas Paine so famously and audaciously wrote, “to begin the world over again" — a world where privacy is a fundamental human right to be preserved at all costs, not a problem to be defeated by the very country once so committed to protecting it.