One of the National Security Agency's primary defenses against criticism has been that it is subject to robust oversight from all three branches of the federal government. In the past week, however, all three branches have called for reform.
NSA oversight was never as robust as the "three branches" claim, which the agency has made repeatedly. (One quick example, from an August presentation: "all three branches of our government exercise oversight over NSA's use of [FISA] authority." Or just do a Google search.) The executive branch oversight is largely self-administered, as Ryan Lizza's recent New Yorker article makes clear. Congressional oversight has been the sole purview of the House and Senate intelligence committees, each of which is chaired by a staunch defender of the agency. Judicial oversight has been conducted by a secret court that has been forced to defend allegations that it is merely a rubber-stamp.
Now, each of those branches is proposing — or, in some cases, insisting upon — significant reforms to how the NSA conducts its surveillance.
Monday's ruling by D.C. Circuit Court judge Richard Leon is clearly the most significant ruling against the agency since the Snowden leaks began; it may be the most significant to date against the agency overall. The case centered around the collection of metadata on Americans' phone calls, the numbers involved and length of call data that the NSA scoops up on a daily basis from phone carriers.
Suggesting that Bill of Rights-architect James Madison would be "aghast" at the NSA's data collection, Leon agreed that an injunction requested by the plaintiffs should go into effect — in other words, he ordered a halt to the data collection, finding that the behavior likely intruded on the plaintiffs' constitutional rights. There are several caveats. The injunction applies only to the plaintiffs, not each of the 300-plus million Americans that use cell phones or landlines. Leon also stayed the ruling, deferring any injunction until the ruling can be appealed.
The message from the judiciary is nonetheless clear: the NSA's surveillance apparatus goes too far. And even if Leon's decision is reversed on appeal, there are a vast number of lawsuits still waiting for decisions.
(It's worth noting that the decisions made by the FISA Court, that secret "rubber-stamp" court that has in the past approved the NSA's data collection, are also generally made by one judge at a time.)
The executive branch
In August, President Obama created an independent panel to analyze the NSA's surveillance activities — a panel widely critiqued for being comprised mostly of former members of the national intelligence infrastructure. But according to multiple reports, the panel has delivered a series of actual reforms to the president — including reform of the phone metadata collection program.
One of the apparent proposals — which would still need to be put into effect by Obama — is to curtail the ongoing collection of those phone records. What the proposal looks like specifically isn't clear, but it could include requiring telecommunications vendors to maintain the records on-site, to be surveyed by the NSA as needed for terror investigations. In his widely derided interview with 60 Minutes, NSA head Keith Alexander appeared to try and counteract that suggestion, stating that having to pull data from individual phone vendors would slow the agency's investigations down. As Leon's decision points out, however, the NSA was never able to illustrate an occasion in which the metadata collection was able to stem an urgent terror situation. In other words, a delay would never have been a problem in the past.
To be fair, these recommendations are a long way from becoming real constraints on the agency. And as The New Yorker points out, Obama has in the past readily deferred to his intelligence officials on how to conduct their surveillance. In his interview with MSNBC's Chris Matthews earlier this month, though, the president said that he planned to impose "self-restraint" on the agency — which could mean precisely these sorts of tweaks.
Since the Snowden revelations began, members of Congress have been regularly offering reform legislation, much of it focused on the NSA's metadata collection. The Leon verdict may present a tipping point.
"This program... helps keep this nation safe. I'm not saying it's indispensable." - Sen Feinstein re NSA ruling, on @mitchellreports— Ari Melber (@AriMelber) December 17, 2013
Take, for example, California Sen. Dianne Feinstein. The chair of the Senate Intelligence Committee and unwavering booster of the NSA appears to be willing to reconsider that support. Earlier this month, Feinstein was widely critiqued for offering a "reform" bill that would merely have provided broader legal cover to the NSA's activities. On MSNBC's Andrea Mitchell Reports on Tuesday, Feinstein appears to have softened her tone on the data collection in the wake of Leon's decision.
Update, 5:00 p.m.: Feinstein has now called for the Supreme Court to consider the surveillance programs.
Earlier this year, Michigan Rep. Justin Amash's House bill to cut funding for the NSA's metadata collection came surprisingly close to passage. If that vote were to be held again, it seems very possible that it could erase the 12-vote margin by which it failed in July.
The odds are low that the NSA's metadata collection will end any time soon. But the agency's most fervent argument, that it has the backing of the government at large, has fallen apart. Much of Congress, a presidential advisory panel, and a federal district court have all weighed in against business as usual. How the NSA will defend its metadata collection moving forward remains to be seen.
This article is from the archive of our partner The Wire.
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