2014 03 26 BDN Mr. Obama’s Limits on Phone Records – NYTimes.com
Mr. Obama’s Limits on Phone Records
If President Obama really wants to end the bulk collection of Americans’ telephone records, he doesn’t need to ask the permission of Congress, as he said on Tuesday he would do. He can just end it himself, immediately.
That’s what Senator Patrick Leahy, the chairman of the Judiciary Committee, urged him to do. “The president could end bulk collection once and for all on Friday by not seeking reauthorization of this program,” Mr. Leahy said.
Ending bulk collection now wouldn’t undermine Mr. Obama’s proposal to Congress. In fact, if his promise is matched by the final details (which are not yet available), it could be an important and positive break from the widespread invasion of privacy secretly practiced by the National Security Agency for years. Getting a law to create strong judicial oversight of data collection would be a check on the ambitions of future presidents. But once the question is tossed into the maelstrom of Congress, where one party routinely opposes anything the president wants, the limits could be delayed, or diluted, or just killed.
And while lawmakers wring their hands, the invasion of privacy will continue.
As Charlie Savage reported in The Times on Tuesday, the president is planning to ask Congress to end the N.S.A.’s systematic collection of telephone records begun under President George W. Bush, an action already endorsed by his independent board of advisers. The records will be left in the hands of the phone companies, where they belong, until the N.S.A. gets permission from a judge to review an individual record because of a possible tie to terrorism. (The companies would only have to store the data 18 months, compared with the agency’s five years.)
The requirement for judicial review is one of the most important parts of the president’s plan. Just as police departments have to get a court order for a wiretap, the intelligence agencies need to present their justification to an outside arbiter for a request of telephone data, which can be as revealing as the content of a conversation. The provision distinguishes the White House plan from a much weaker bill introduced by the leaders of the House Intelligence Committee, which would allow the N.S.A. to subpoena individual records without judicial approval.
But there are still important unknown details. What standard of suspicion does the government need to meet to persuade a judge? Administration officials said it would be the “reasonable, articulable suspicion” of terror ties now used by the N.S.A. when examining phone records, but that remains an unacceptably weak level of proof. Judicial review should require a clearer, stronger standard, though it is doubtful Congress will approve one.
It’s not clear, as Jameel Jaffer of the American Civil Liberties Union wrote, whether the proposal covers all the methods the intelligence agencies use to collect personal and financial records, and whether the N.S.A. will delete the records it has. The Foreign Intelligence Surveillance Court, which will consider the requests for records, should be required to disclose how often it says yes.
The immediate question, though, is why the president feels he needs to wait for Congress before stopping mass collection. As Mr. Obama said on Tuesday, because of Edward Snowden’s revelations, “we have to win back the trust not just of governments but, more important, of ordinary citizens.” Continuing the current surveillance program while lawmakers argue is not the way to begin winning back the country’s trust.