THE White House response this week to the expanding disclosures of American spying on foreign leaders, their governments, and millions of their citizens was a pathetic mix of unsatisfying assurances about reviews under way, platitudes about the need for security in an insecure age, and the odd defense that the President didn’t know that American spies had tapped the German chancellor’s cell phone for 10 years.
Is it better for us to think that things have gone so far with the post-9/11 idea that any spying that can be done should be done, and that nobody thought to inform President Obama about tapping the phone of one of the most important American allies?
White House spokesman Jay Carney said Mr. Obama ordered a review of surveillance policy months ago. But he would not confirm whether that includes tapping the cell phone of Chancellor Angela Merkel of Germany, or the collection of data on tens of millions of calls in France, Spain, and elsewhere.
It’s unlikely that Mr. Obama would have ordered any review if Edward Snowden’s leaks had not revealed the vacuum-cleaner approach to electronic spying. Mr. Carney left no expectation that the internal reviews will produce any significant public accounting.
Fortunately, members of Congress have been more aggressive in responding to two broad disclosures: One, that both the Obama and George W. Bush administrations misinterpreted the Patriot Act to permit the collection of metadata on phone calls, emails, and text messages of all Americans, whether they were international or domestic.
And second, that 2008 amendments to the Foreign Intelligence Surveillance Act were stretched to excuse the routine collection of data from 60 million telephone calls in Spain and 70 million in France over two 30-day periods.
Legislation to be introduced by Sen. Patrick Leahy (D., Vt.), the chairman of the Senate Judiciary Committee, and Rep. Jim Sensenbrenner (R., Wis.) would end the bulk collection of Americans’ communications data.
The administration has said that such data collection is permitted by the Patriot Act, although Mr. Sensenbrenner, who helped write the law, has said it is not. His bill would require that the “tangible things” sought through data collection are “relevant and material to an authorized investigation into international terrorism or clandestine intelligence activities.” They would have to pertain to a foreign power or its agent, activities of a foreign agent under investigation, or someone in touch with an agent.
The government now conducts metadata collection by periodically, vaguely informing a federal court in secret that it is working on security-related issues. The bill would require a court order to search for Americans’ communications in data collected overseas, which falls under the Foreign Intelligence Surveillance Act.
It also would restrict “reverse targeting” of a foreigner with the goal of getting information about an American. The bill would not address spying on foreigners, including such abuses as in the Merkel affair. Those activities are governed by a presidential order that is secret and certain to remain so.
We are not reassured by the oft-heard explanation that everyone spies on everyone else all the time. We are not advocating a return to 1929, when Secretary of State Henry Stimson banned the decryption of diplomatic cables because “gentlemen do not read each other’s mail.”
But there has long been an understanding that global spying is done in pursuit of a concrete security threat. That Chancellor Merkel’s cell phone conversations could fall under that umbrella is an outgrowth of the post-9/11 decision by President Bush and Vice President Dick Cheney that everyone is the enemy.
That led to Abu Ghraib, torture at the secret Central Intelligence Agency prisons, warrantless wiretapping of American citizens, grave harm to international relations, and the dragnet approach to surveillance revealed by the Snowden leaks.
— New York Times