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Future of Government Spying in Hands of 2016 Candidates

A chunk of the electorate remains willing to swap constitutional rights and privacy for protection against terrorism. The only chance to break this pattern is if the 2016 elections offer a definitive political verdict on restoring the privacy of electronic communications.

November 15, 2013

Nearly six months after Edward Snowden’s initial NSA revelations, the data-collection-gone-mad story refuses to die.

On Monday, the Supreme Court turned aside an unusual challenge by the Electronic Privacy Information Center to the FISA courts that oversee the NSA’s domestic activities. Long-time critics of the NSA like Oregon’s Senator Ron Wyden also revealed plans to amend the Pentagon’s budget to mandate more public disclosure of the extent of the NSA’s surveillance efforts.

And last week, John McCain called for the immediate firing of General Keith Alexander, who directs the National Security Agency, in part because of the foolhardy eavesdropping on Angela Merkel’s cell phone. Dianne Feinstein, who chairs the Senate Intelligence Committee, was pushing for legislation to grant the Senate power to confirm future NSA directors. At the White House, there was talk that Barack Obama will choose a civilian to replace Alexander when he retires, as planned, next spring. And, finally, the president’s national security team received an interim report (contents unknown) from the blue-ribbon team of outside experts reviewing the NSA’s vacuum-cleaner approach to electronic communications.

Yet it is easy to be deceived by the flurry of activity. For all the good intentions of the NSA’s congressional critics, the odds remain low that anything significant will change at the National Snooping Agency. In truth, almost everything being discussed at the White House and by the congressional leadership in both parties is primarily cosmetic. As The New York Times reported, Harry Reid wants Obama’s approval of any potential changes in how the NSA operates and John Boehner, whose preferred speed is glacial, is eager to delay bringing any data collection legislation to the House floor.

All of this brings us back to Band-Aid notions being currently kicked around in the press like more disclosure. The NSA has been so secretive over the years that any requirement to inform the public about snooping might seem like a dramatic step. But since no policies would be changed, it is closer in spirit to the British newspapers being allowed to publish the name of the head of MI5 than it is to far-reaching reform of an agency that reads everything except the text of the Fourth Amendment.

In similar fashion, does it matter much in the long run whether General Alexander bids farewell to NSA headquarters at Fort Meade over the Christmas holidays or on April Fool’s Day? A civilian leader for the NSA in itself would be no panacea since that category could theoretically (okay, very theoretically) include Dick Cheney or someone equally heedless of privacy rights. And Senate confirmation for the new NSA director before the supine Intelligence Committee would probably lead to blather during the public hearings and anything substantive reserved for top-secret executive sessions.

The sad truth is that Obama himself has little incentive to dramatically change NSA data collection policies so that they respect both the Constitution and norms of personal privacy. The president’s complicity is too deep since many of the NSA’s abuses began or were expanded on Obama’s watch. At a time when his approval ratings are plummeting and the rollout of Obamacare has become the programmatic version of Ishtar, the last thing the president needs is to turn the public’s attention back to another governmental failure.

Congress, which almost always proves timorous in national security matters, faces only limited election-year pressures to reform the NSA. The one thing that politicians in both parties can do in gridlocked Washington is to read polls. And rather than displaying an unequivocal verdict that the NSA’s data sweeps have gone too far, the rough contours of public opinion suggest that Americans are instead in the muddled middle. (Almost all the detailed recent polling on the NSA was conducted during the summer at the height of the Snowden revelations. Also, this is an area in which slight changes in question wording can sometimes produce different results).

A narrow 50-to-44 percent majority approved of “the government’s collection of telephone and Internet data as part of anti-terrorism efforts” in a mid-July survey conducted by the Pew Research Center. But the same poll found that Americans are simultaneously cynical about any efforts to rein in the NSA. Only 30 percent of those surveyed believed that the courts “provide adequate limits” on the data being collected. And only 22 percent felt that the government’s goal in snooping is solely “to investigate terrorism.” 

A similar zigzag pattern emerged in a late July Quinnipiac University national poll. Once again, a 50-to-44 percent majority felt that the NSA’s call monitoring program “is necessary to keep Americans safe.” But, at the same time, 55 percent of those surveyed believe that scanning all phone numbers called for links to terrorism was “too much intrusion into Americans’ personal privacy.”

Yes, these polling numbers are contradictory. What they reflect is that a chunk of the electorate remains willing to swap constitutional rights and privacy for protection against terrorism. It is why whenever challenged about their invasive techniques, national security officials always trumpet the supposed number of terrorist attacks that have been deterred.

The larger reason for dwelling on the polls is that the future of the NSA inevitably is a political decision that will be determined by the results of the 2016 presidential election. When voters elect a successor to Obama, 15 years will have passed since the horrors of September 11. That represents the same time gap between the end of World War II and John Kennedy’s election.

In short, the next president can declare his or her independence from the panicked actions that eroded civil liberties in the wake of terrorist attacks. Among the plausible 2016 contenders in both parties, only Joe Biden and, to a limited degree, Hillary Clinton have any connection to the national security decisions of the past. Like 2008, this is shaping up as a clean-slate election that could chart a new course for the NSA and other intrusive federal agencies.

At the moment, from the liberal left to the libertarian right, there are vibrant constituencies for national security reform and restraint in both parties. The challenge is to translate these stop-snooping sentiments into 2016 campaign issues that will not be overwhelmed by the standard-issue policy debates over the economy and health care.

Even more daunting is what might well happen if the voters somehow choose as the 45th president a candidate who promises to roll back NSA eavesdropping and similar abuses. On paper Senator Barack Obama, a liberal who had taught constitutional law, seemed uniquely equipped by both experience and the political mood of 2008 to be that kind of agent of change in the White House.  

Instead Obama appears to have gone native the moment that he received his first top-secret national security briefing in the Oval Office. That conversion experience from dove to hawk, from civil libertarian to 21st century anti-terrorism warrior, sadly may not be unique to Obama. Anyone who wants to restore constitutional norms to national security has to deal with the psychological transformation that comes over a president when he bears the full burdens of office.

The playwright George S. Kaufman offered this truism about Broadway: “Satire is what closes on Saturday night.” That same model can be applied to civil liberties when they collide with national security. And the only chance that this pattern can be broken at the NSA (and even then there are no guarantees) is if the 2016 elections offer a definitive political verdict on restoring the privacy of electronic communications.

(Photo: Wikimedia Commons)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.