When snooping goes too far

January 16, 2014 5:38PM

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Updated: February 18, 2014 6:27AM

On Monday we celebrate the birthday of the Rev. Martin Luther King Jr., a man who was hounded and harassed by the FBI, which snooped into every corner of his private life in a campaign to take him down.

Who’s to say another J. Edgar Hoover will not run the FBI again some day — or run the NSA or the CIA?

And who’s to say another Richard Nixon will not sit in the Oval Office again one day, secretly abusing the powers of government to take down his every last critic?

Free societies do not rely on wise and ethical leaders to preserve personal liberties because, as history shows, wise and ethical leaders can be hard to come by. Free societies rely on the rule of law, imposing strong limits on the ability of government to butt into private lives.

In a speech on Friday at the Justice Department, President Obama is expected to announce a number of reforms to rein in the snooping powers of the federal government, but by all reports his proposals will fall far short of the reforms urged by his own blue-ribbon panel of experts. In Obama’s America, citizens still will have to rely on good leaders rather than good laws to keep government snoops from digging too deeply into their private business.

Good luck with that.

Obama’s reluctance to endorse more of the panel’s recommendations, White House officials say, stems from his experiences as commander in chief trying to bat down terrorist threats. He got his first reality check even before his first inauguration when he was informed of a supposed plot by Somali extremists to attack the ceremony.

But if sitting in the hot seat gives Obama a special appreciation of the seriousness of terrorist threats, so too might it lead him to discount, as a matter of expediency, the very real threat to civil liberties posed by a cyber-sleuthing government.

For precisely this reason, to obtain the guidance of true experts with no political agenda, Obama appointed his five-member surveillance review panel, which included such deeply informed and independent-minded experts as University of Chicago Law School professor Geoffrey Stone, Harvard Law School professor Cass Sunstein and former White House counterterrorism adviser Richard A. Clarke.

The panel did its homework and presented Obama with a series of reforms tailored to curtail the worst potential civil liberty abuses while not handcuffing the nation’s ability to respond effectively to terrorist threats.

Disappointingly, Obama reportedly has rejected the panel’s recommendation that the FBI obtain court approval for all national security letters, which are administrative subpoenas that allow the FBI to gather sundry personal information — library withdrawals, mortgage statements, bank records, whatever — about anybody for essentially any reason.

Somewhere, J. Edgar is dancing.

Obama has signaled he will support another of the panel’s recommendations, the appointment of a “public advocate” to argue against the Justice Department in secret proceedings before the nation’s Foreign Intelligence Surveillance Court. But here the devil is in the details — the level of resources and powers the advocate would be given; and Chief Justice John G. Roberts has made it clear he believes there should be a public advocate in the courtroom only if allowed by the presiding judge. Obama must stand firm for a fully supported and fully present public advocate.

Equally disappointing, Obama reportedly will not support the panel’s recommendation that the National Security Agency be prohibited from retaining the phone records of almost all Americans. Objections to that proposal are practical — the telecommunications companies would have to retain the records, instead, at an expense to them. Obama is expected to boot the problem over to Congress to solve, which in the current political climate is the same as doing nothing at all. The NSA will continue to collect and retain bulk phone records.

Obama may well be one of those wise and ethical leaders who is loath to abuse the powers of surveillance. But what kind of men and women will future presidents be?

In a meeting with Obama, Clarke told the New York Times, the president’s panel of advisers made just that argument:

“The point we made to him was, ‘We’re not really concerned about you, Barack, but God forbid some other guy’s in the office five years from now and there’s another 9/11.”

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