Trump Shows the Flaws of NSA Surveillance

PHILADELPHIA––On Wednesday, Leon Panetta, the former director of the CIA, declared on stage at the DNC that the Republican Party’s nominee is unfit for office. He was responding in part to news that Donald Trump “hoped Russian intelligence services had successfully hacked Hillary Clinton’s email, and encouraged them to publish whatever they may have stolen, essentially urging a foreign adversary to conduct cyber-espionage against a former secretary of state.”

For Panetta, that was unforgivable.

“Donald Trump today once again took Russia’s side,” he said. “He asked the Russians to interfere in American politics … It is inconceivable to me that any presidential candidate would be that irresponsible. I say this out of a firm concern for the future of my children and my grandchildren: Donald Trump cannot become our commander in chief. In an unstable world we cannot afford unstable leadership.”

His outrage is understandable––once again, Donald Trump showed that he lacks the judgement and self-discipline necessary to be a good president of the United States.

But Panetta is rather late in foreseeing the possibility of such a leader.

A few short years ago, when Edward Snowden revealed the extent of NSA surveillance on American citizens, corporations, and other institutions, NSA defenders insisted that the national security establishment can be trusted, and that civil libertarians were overly paranoid to worry that unprincipled elites would, sooner or later, exploit the era of mass surveillance to manipulate the political process.

With the Republican nominee for the presidency openly yearning for a foreign intelligence agency to hack a political rival, Trevor Timm, one of those civil libertarians, took the opportunity to issue a reminder: If elected to the presidency, “Trump would head a vast NSA apparatus he could turn on his political enemies.” This was, Timm wrote, “always the overarching concern about NSA: Even IF it’s not being abused now, the system would allow future leaders to wreak havoc.”

And the safeguards that NSA defenders always invoke?

“Hopefully if President Trump ever ordered the NSA to hack into the computer systems of domestic opponents or critics, NSA leaders would refuse,” Tim Lee noted at Vox. “But the president has the power not only to choose the NSA director but also to prosecute whistleblowers for leaking classified information. So we shouldn’t be too confident that internal resistance at the NSA would stop him.”

Jennifer Granick set forth a specific accounting of weaknesses in NSA oversight.

“The president isn’t required to inform Congress or the PCLOB if she changes Executive Order 12333,” she explained. “She is not required by law to give Congress notice of or the opportunity to review new Presidential Policy Directives affecting surveillance. The FISA Court still has no role in supervising overseas spying, nor must the president inform Congress when she initiates new overseas spying programs. When Office of Legal Counsel opinions justifying surveillance proposals are written, Congress need not be told nor given a copy. If the DOJ changes minimization procedures or FBI guidelines, it is not required to inform Congress. Classification continues to get in the way of oversight. There is no punishment for people who violate the law at a president’s behest. And whistleblowers have less, not more, reason to believe they will be protected and not prosecuted.”

I warned, long before the rise of Donald Trump, that Presidents Bush and Obama were providing all the infrastructure that a tyrant would need to perpetrate grave abuses of power. With his rise, I urged elected officials to tyrant-proof the White House before it’s too late. If the prudence of doing so wasn’t evident before, is it now, with knowledge that Trump soon won’t need the Russians to secure information about the private communications of every legislator and judge in America, but will presumably still want to hack into the communications of his rivals?

This danger would be lessened with reforms to the NSA, including a mandate to purge old data from its vast stores. At the same time, Trump’s outreach to the Russians underscores the fact that we’re now in a reality where any candidate for president, or the president herself, can seek data from foreign-intelligence agencies, data that can almost certainly give them power relative to political adversaries.

One wonders what the British Government Communication Headquarters knows about Donald Trump. Might Hillary Clinton ask one day?

So reforming the NSA isn’t enough. The prudent course, for the U.S. government, is reorienting the agency so that it spends fewer resources spying on Americans and more on helping to protect the private details of our lives from actors foreign and domestic.

And there is more to protect beyond our privacy. Says Jack Goldsmith of Harvard Law School, “Does the United States government have a well-worked out plan to ensure that our highly computerized and highly decentralized system for electing the president is protected from foreign disruption via cyber-exploitation or cyber-attack? I have no idea—but I seriously doubt it.”

Better to address these vulnerabilities before they are exploited than to invite a crisis of democracy even more alarming than a reality-TV star seeking the presidency.