Rutland Herald and Montpelier (Barre) Times Argus

Sunday January 5th, 2014

By Barrie Dunsmore


As I’m sure you know, the final choice for Time Magazine’s person of the year was between the new Pope Francis, who is changing the face of the Roman Catholic Church; and Edward Snowden, the IT contractor who stole the deepest secrets of the National Security Agency and revealed them to the world.


Historically, the person of the year has been the one who, for good or ill, has made the biggest impact on our world in the preceding year. Thus, in their times, Adolf Hitler and the Ayatollah Khomeini were among the occasional malevolent figures to be selected.


Had I been the editor of Time, I think I too would have selected Pope Francis. For one thing, it’s a feel good story affecting more than a billion Roman Catholics world-wide (which would be good for circulation.) Edward Snowden’s actions unquestionably have had a profound international impact in ways we are still digesting - but a feel good story, it is certainly not. Yet the man himself maintains supremely confident, telling the Washington Post, that his “mission was accomplished” and “I already won.”


Whether one is pro or anti Snowden, no one would argue that his revelations have been insignificant. In fact, they represent by far, the greatest breach of American intelligence secrets ever revealed by any spy at any time in the history of the republic. They have also ignited an intense new debate over civil liberties vs national security.


Most Americans see Snowden as a traitor. But a substantial number consider him a whistle-blower and hero - because he alerted American citizens to the substantial threat to civil liberties which in their view, the National Security Agency has become.


That debate has started in the federal courts. One federal judge has ruled that what the NSA is doing in its massive collection of American’s phone and internet communications is almost certainly unconstitutional; while a second federal judge ruled just the opposite. Inevitably, the case will go to the Supreme Court, but given the deep ideological split among its nine members, only a most unlikely near unanimous decision would be considered definitive. That leaves the challenge to reconcile the security of Americans while protecting their privacy, to the legislative and executive branches of government. And in fact, we may see some tangible movement on this front later this month.


On the executive side, the President’s Review Group on Intelligence and Communications Technologies, formed last August in the wake of Snowden’s cascading disclosures, has now reported to the White House. This panel is by no means a rubber stamp of the NSA’s current intelligence gathering procedures.


Among the five men in the group are Richard C. Clarke, a cyber-warfare expert and former National Security Council official who clashed with the Bush II Administration over 9/11; and Professor Geoffrey Stone of the University of Chicago Law School, one of the country’s leading scholars on the history of the impact of war on civil liberties. His 2004 book “Perilous Times-Free Speech in Wartime” remains a definitive study on this subject.


In an official statement of the panel’s five members, they concede the serious national security threats the U.S. and its allies face from “international terrorism, the proliferation of weapons of mass destruction, cyber-warfare and espionage.”

And they recognize the need for “effective surveillance” by the NSA to combat such threats.


But having said that, the group recommends that the president make 46 changes in the laws governing the NSA. The panel writes, “Our major conclusion is that the nation needs a package of reforms that will allow the intelligence community to continue to protect Americans, as well as our friends and allies, while at the same time affirming enduring values involving both privacy and liberty, that have made the United States a beacon of freedom to so much of the world.”


In summarizing the 46 points, this was listed as number one:

“The government should end its domestic program for storing bulk telephone meta data. The current program creates potential risks to public trust, personal privacy and civil liberty. In some cases the government will have a national security justification for access to such metadata, which should be held instead either by private providers or a private third party, which should be available only after an appropriate order by a court.”


Prior to taking his Christmas break, President Barack Obama said he would study these recommendations carefully and would make a statement on the subject in January. But bearing in mind that some of these proposed reforms would require changes in the law, there will also be a need for legislative action. Given the hyper- partisanship of the present Congress - where might that lead us?


Actually there is some hope. Vermont’s Democratic Senator Patrick Leahy, Chairman of the Senate Judiciary Committee, has been holding hearings on a bi-partisan bill he has co-sponsored with Congressman James Sensenbrenner (R-WIS), called the USA Freedom Act. Leahy’s committee has another hearing on the bill January 14th, at which all five members of the president’s panel are expected to testify.


According to a summary of the proposed USA Freedom Act it will, “rein in the dragnet collection of data by the National Security Agency and increase transparency of the Foreign Intelligence Surveillance Court.”


There are differences in detail between the presidential panel’s calls for reform, and the Leahy-Sensenbrenner bill, but they have a good deal in common. And together they could provide a path to resolving the crisis in confidence felt by those many Americans who fear the NSA is out of control. 


While that may or may not be true – without doubt there is the potential for abuse in the present NSA surveillance system. That’s what needs to be fixed. As Professor Stone wrote in his book, Perilous Times, Americans have, “a long and unfortunate history of over-reacting to the perceived dangers of wartime……and then- later -regretted their actions.” The WWII Japanese internment and the McCarthy era communist witch hunts are just two among numerous examples.


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