The most damning revelation from a review of the National Security Agency's metadata programs released Wednesday is that collecting records of nearly all the phone calls made in the United States in the last five years was not essential to prevent terrorist attacks.
A federal judge reached a similar conclusion earlier this week in a case challenging the constitutionality of the vast data sweep. In a stinging ruling, U.S. District Court Judge Richard Leon said the NSA didn't produce a single example where its immense trove of phone data helped prevent an imminent terrorist attack.
Based on those findings, the cost-benefit analysis weighing privacy versus security in judging whether the programs should be curtailed has shifted dramatically toward protecting privacy. If amassing data on whom we call and when and how long we talk hasn't made us safer, there is no justification for the unprecedented invasion of privacy.
The five-member panel was created by President Barack Obama in August after leaks from former intelligence contractor Edward Snowden revealed the NSA surveillance. It includes Richard Clarke, a national security official under two former presidents; Michael Morell, a former deputy CIA director; and experts in constitutional law.
In addition to finding that the NSA gave privacy short shrift, the panel concluded that the phone surveillance risked undermining relationships with allies whose leaders' calls were monitored. And it said the records grab could harm commerce if U.S. telecommunications companies cannot assure customers here and abroad that their records are safe and secure.
Some of the panel's recommendations should be quickly adopted. For instance, Congress should create a "public interest advocate" to represent civil liberties interests before the Foreign Intelligence Surveillance Court, which was created in 1978 to provide judicial oversight of intelligence-gathering activities. Currently, only the government is represented before the court, which meets in private and issues secret rulings. And Obama should see to it that the president, not intelligence officials, sign off on surveillance of heads of state.
Congress should also carefully weigh the panel's core recommendation -- that while records of phone calls should be available to intelligence officials with a court order, the government should not be permitted to sweep up and store that nonpublic, personal information about all Americans. Adopting those principles would ensure restraint, which is badly needed. But it also would raise a raft of practical issues.
If the government doesn't collect the call data, who should? The panel suggested telecom companies or a private entity created for that purpose. But telecom companies have no business reason to store all that information for years on end, and apparently don't want the job. And if they were to take it on, how would data held by different companies in different forms be organized so the government could swiftly access it all when appropriate? If a private entity is created to do the job, who would run it? And if the government foots the bills, how can the public trust that intelligence officials will be locked out without a court order? Besides, given the questionable security payoff from amassing all that data, is it worth what it would cost taxpayers?
When Obama addresses the nation on the issue of NSA surveillance next month, he should rein in the agency's wholesale collection of phone records. And he has to spell out how he will ensure that data gathered will actually help to keep us safe.