President Obama announced this morning that he will propose legislation calling for significant changes in the NSA’s telephone metadata program. This is good news, indeed.
The enactment of these proposals would strike a much better balance between the interests of liberty and security. They would preserve the value of the NSA’s program in terms of protecting the national security, while at the same time providing much greater, and much needed, protection to individual privacy and civil liberties.
The proposals are based on recommendations made by the president’s five-member Review Group, of which I was a member. To understand why we came up with these suggestions, it is necessary first to understand how the program operates.
Under the telephone metadata program, which was created in 2006, telephone service companies like Sprint, Verizon and AT&T are required to turn over to the NSA, on an ongoing daily basis, huge quantities of telephone metadata involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
Even though the program to-date has functioned properly, history teaches that there is always the risk of another J. Edgar Hoover or Richard Nixon.
A few days ago on the campus of the University of Mississippi, someone (reportedly two males) draped a Confederate flag on a statue honoring James Meredith and hung a noose around its neck. Meredith was the African-American student who courageously desegregated the University of Mississippi in 1962, weathering a storm of ugly protest, riots and threats of violence. This act was, by any measure, deeply disrespectful and hateful.
University of Mississippi Chancellor Dan Jones responded by stating of those who did this: "Their ideas have no place here, and our response will be an even greater commitment to promoting the values that are engraved on the statue—Courage, Knowledge, Opportunity, and Perseverance."
This poses an interesting question. How should the University of Mississippi respond? What does it mean to say that these "ideas have no place here"? Assuming the individuals who did this were students, should the university expel or otherwise discipline them? Are there "ideas" that "have no place" on a university campus?
* This post originally appeared on The Huffington Postand is the third part of an ongoing series. The first part can be read here; the second part can be read here; the fourth part can be read here; the fifth part can be read here.
In my last post, I explored the pros and cons of the NSA's bulk telephony meta-data program. As I reported, after considering all the competing interests and perspectives, the Review Group concluded that, in light of the availability of other means by which the government could achieve its legitimate objectives, there was "no sufficient justification to allow the government itself to collect and store bulk telephony meta-data." The Review Group therefore recommended that the meta-data program, as currently constituted, "should be terminated as soon as reasonably practicable."
At the same time, though, the Review Group found that access to telephony meta-data can be useful to the government in its effort to identify terrorists operating inside the United States. The challenge was to figure out how best to preserve the legitimate value of the program while at the same time reducing its risks to personal privacy and individual freedom.
To strike a better balance, the Review Group recommends several important changes in the program as it currently exists.
First, and perhaps most important, the Review Group recommends that the government should not be permitted to store the telephony meta-data. The Review Group reasoned that taking the meta-data out of the hands of government would substantially reduce the potential for government abuse. The Review Group therefore recommends that the telephony meta-data should be held by private entities. That is, the meta-data should be held either by the various telephone service providers themselves or, upon a showing that that solution would make effective use of the meta-data impossible, by a private organization created specifically for that purpose. This approach would both prevent the government from having direct access to the database and ensure that an independent set of eyes could monitor the government's access to the information.
House Speaker John Boehner remains obstinate – the president and Senate must agree to delay or greatly hobble the Affordable Care Act or the government shutdown continues. The New York Times’ Editorial Board correctly dubs it “John Boehner’s Shutdown.”
Others have rightly taken note that Boehner and a faction of House Republicans are also waging an assault on the Constitution and democracy.
How does one party that has lost two presidential elections and a Supreme Court case – as well as two Senate elections – think it has the right to shut down the entire government and destroy the full faith and credit of the United States Treasury to get its way on universal healthcare now? I see no quid pro quo even. Just pure blackmail, resting on understandable and predictable public concern whenever a major reform is enacted. But what has to be resisted is any idea that this is government or politics as usual. It is an attack on the governance and the constitutional order of the United States.
Geoffrey R. Stone, a distinguished law professor at the University of Chicago, has also weighed in, blasting the House Republicans' outlandish attack on “democratic governance.”
In piece for The Huffington Post, Stone says there is only one side to blame here. As Sullivan and many others have pointed out, Republicans’ efforts to kill Obamacare in the courts, in Congress and in a presidential election were futile. Regardless of what mainstream pundits say, this is not a system broken or perverted by both parties and the president. This is all about Republicans who refuse to play by democratic processes.
Stone doesn’t mince words, calling the House Republicans’ behavior “nothing less than a perverse and unconscionable betrayal of our democracy.”
Stone explains, “House Republicans who do not have the votes to repeal Obamacare through the processes of democracy threatened to close the federal government, to throw hundreds of thousands of innocent government employees out of work, and to damage the nation’s economy unless the Senate and the President acceded to their demands. By threatening to wreak havoc with the national interest and inflicting serious harm on hard-working, loyal public employees, they are attempting to coerce rather than to persuade the government into doing what they want. The House Republicans, in short, are holding the nation itself hostage to their demands. This is not democratic governance. This is extortion, plain and simple. In any other circumstances, this would be criminal conduct.”
Geoffrey Stone, the Edward H. Levi Distinguished Professor of Law at the University of Chicago Law School and former ACS Board Chair, is doing an epic six-art video interview with our friends at SCOTUSblog. In it, Professor Stone talks about his long career in academia, clerking for Justice Brennan on the Supreme Court, his thoughts on how the high court has changed over the last 40 years and modes of constitutional interpretation.