President Obama made a compelling argument Friday when he said authorities might have thwarted the 9/11 attacks had they been able to determine that one of the hijackers, Khalid al-Mihdhar, was in San Diego when he placed a call to a known al-Qaida hideout in Yemen.
The unstated and unanswered question, however, is whether terrorists remain so sloppy as to communicate this way today, given how technology has evolved since 2001. We’re guessing they don’t.
Any nation — and especially the United States, which, as the president said, holds a unique responsibility as the world’s only superpower — has a need to gather intelligence for national security. The trick is to do this in a rapidly changing world of digital technology and monitoring capabilities without sacrificing the rights guaranteed by the Constitution.
The trick also is to be nimble enough to respond to changing technology and practices.
Obama deserves credit for laying out a plan that attempts to walk this tightrope, and for acknowledging that privacy concerns need to be constantly debated and analyzed going forward. However, his plan to take the massive bulk of communications data the National Security Agency has gathered on all Americans — often referred to as metadata — out of the government’s hands raises a host of concerns.
The problem isn’t so much that the information is in the hands of the government, but that it is in human hands. While political leaders and even bureaucrats may have personal reasons to abuse the data gathered, government at least has the duty to protect its citizens from attack. The same can’t be said of a third party corporation, even making allowances for patriotic feelings and sense of duty.
Again, the president seems acutely aware of these concerns. Companies holding this data will have to decide how to keep it, and the government will need to find ways to monitor how they do so to protect against abuses.
In a well-meaning effort to keep the government intelligence apparatus one step removed from the data, the president has created a host of new concerns that are likely to involve extra expense and complications. Obama himself said these third parties would be doing “what is essentially a government function with more expense, more legal ambiguity, and a doubtful impact on public confidence that their privacy is being protected.”
The president said he would counter these concerns by limiting data searches only to calls that are no more than two steps removed from phone numbers belonging to terrorist groups. He also won’t allow searches until “after a judicial finding, or in a true emergency.” That last step will apply only during “this transition period,” while the database is being moved.
Changing the location of a database many find offensive isn’t likely to change the fact that many find it offensive.
We are reminded of U.S. District Court Judge Richard Leon, who last year declared the NSA’s data-gathering “likely unconstitutional.” He said the government had yet to provide any evidence that gathering telecommunications data from Americans had thwarted any plots to attack the nation.
We also are reminded that Monday is Martin Luther King Day, and that King and other civil rights and anti-war activists of his day were the subjects of illegal government surveillance.
No one should be naïve enough to say the government isn’t capable of abusing power. The president is right to look for safeguards and to publicly address these concerns. While there are limits to transparency where spying on the nation’s enemies are concerned, the nation cannot have too many accountability and review procedures in place, and Congress should explore ways beyond what the president proposes.
As Obama said, “what’s really at stake is how we remain true to who we are in a world that is remaking itself at dizzying speed.”
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