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February 27, 2014

Puzzle Palace Polemics

Administration brain trust has four ideas for reforming the NSA.

Executive Branch court jesters struggled with the difficult problem of answering Barack Obama’s directive to find a way to revise the controversial National Security Agency (NSA) phone-surveillance program in a way that would “take it out of the NSA’s hands.” As a general rule, remember that whenever his lips are moving, bad things for the nation are about to happen. Not to disappoint, the crack team quickly put together four perfect non-starter options for the program.

Why “non-starter”? Well, each option substantially degrades (or outright abandons) national security imperatives or else fails to address privacy concerns. The first option, for example, is the most obvious: Abolish the program. The problem with this option is that this is the classic baby-out-with-the-bathwater solution. The program, for all its faults, has a great deal of merit. To end it is to give America’s enemies carte-blanche reign over a large segment of the intelligence battlefield, setting the stage for another 9/11 … or much worse with Iranian nukes.

The second option is to let the remainder of the inmates guard the asylum. That is, let the phone companies – AT&T, Sprint, Verizon, etc. – store the “metadata” and require the NSA to ask for searches of call records it believes to be related to terrorism. This, of course, also puts phone companies in the unenviable position of being lackeys for the intelligence community, something at which the Founders would have undoubtedly blanched. Phone companies, of course, would also demand indemnity and liability protection, opening a Pandora’s Box of potential consumer-service issues and other third-party “demands” for data (think divorce claims, private investigations, etc.). The Law of Unintended Consequences seems apropos.

Meanwhile, a third option involves the use of a government agency other than the NSA – for instance, the FBI – to store the phone data. We’re not sure why the FBI or any other agency is any more trustworthy than the one that regularly polygraphs its members to ensure loyalty to the U.S. as well as compliance with its solemn duty. For us, this option represents a lessening of assurance, not the converse, and does nothing to address root privacy concerns.

The final option establishes a new entity outside both the phone companies and the government to store phone data. But adding a brand-new permanent government agency to the mix is unappealing as well.

We in our humble shop would like to offer another option: Involve all three branches of the federal government, as a check upon each. Currently, the Judicial (via the FISA courts) and the Executive (under which the NSA operates) branches have full insight into NSA goings-on. However, as much as it pains us to imagine Congress involved in anything – much less an oxymoron such as congressional “intelligence” – the oversight afforded by a select group of appropriately authorized and publicly accountable House and Senate elected officials could act as a much-needed check on any potential abuse of authority from an over-zealous Executive Branch agency or eyes-wide-shut FISA court. For execution of so sacred a trust, the inconvenience of such an oversight is far eclipsed by the assurance to the American people that such a trust will not be violated again.

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