Late this morning, de facto President Barack Obama spoke for nearly forty-five minutes about the NSA surveillance program. He said he would reform it to balance security with liberty. He also denied anyone had ever abused the program. But with his history, no one can really trust him. Moreover the “balance” he proposed is little more than vapor. The real solution is far simpler, and literally comes from one of the Founders.

NSA surveillance program: history and irony

Obama cleverly led with the history of the National Security Agency. It dates back to President Harry S. Truman. But to set the context, Obama mentioned the “secret surveillance committee” of the Sons of Liberty. They watched for British activity during the War for Independence. If Obama saw the irony in mentioning that, he never showed it. (More on that below.)

He mentioned his own earlier opposition to having the United States government spy on its own citizens. (Listen to his 2007 speech below.) But of course he mentioned the terrorist threat. And again he missed the irony. When he took office, he spoke of “man-caused disaster,” not terrorism.

Headquarters of the NSA at Fort Meade, Maryland.

Throughout his speech he insisted that a “review panel” found no evidence of any abuse of the NSA surveillance program. Yet he acknowledged the program needed some “safeguards” to restore trust.

So what did he propose? The most salient proposal: the collection of telephone metadata would cease. At least in its present form. And how would that form change? Only that maybe either the telephone companies or a “third party” (who?) would hold the metadata until the government had good reason to search them.

He spoke in general, even vague terms. And in a third irony, he said Congress would have to solve the problem. This, from one who, three days ago, said he would not wait for Congress:

I’ve got a pen, and I’ve got a phone.

Larry Klayman, for one, doesn’t trust Obama. Recall that Klayman got a federal judge (Richard Leon) to enjoin the NSA surveillance program. Today he said Obama was blowing smoke. No, not blowing. Spewing smoke.

[It doesn’t] matter [what he proposed]. He doesn’t have the authority. It has to come from Congress.

NSA surveillance program: do we even need one?

The NSA’s Utah Data Center. Photo: S. Wilson, CC BY-SA 3.0 Unported License

Dick Morris, among others, said flatly collecting telephone metadata in bulk “does NO good.” The NSA surveillance program does this. But as Morris explains, such metadata has never once stopped a terrorist plot.

Benjamin Franklin could have told us what to do about terrorists, domestic or foreign: let the people arm themselves. He said so in the context of the French-Indian War. This is when he famously said,

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

Now suppose for the sake of argument that those metadata could do anyone any good, despite what Dick Morris says. If Barack Obama were at all serious about a safeguard for the NSA surveillance program, he could have named a specific third party. Namely, a court.

The Constitution gives Congress the power’

to constitute tribunals inferior to the Supreme Court.

Congress could create a special magistrate’s office, with enough magistrates to cover the telephone twenty-four hours a day. (As Judge Andrew P. Napolitano used to do, to issue search warrants.) This office could have physical custody of a giant server farm, or a dedicated cloud, to handle all the metadata from any telephone company. Let the magistrates keep the records for as long as Congress tells them to. Let the NSA or any other agency send someone to swear out a warrant “particularly describing” the telephone number to be searched for, and the records they seek. That would be in accord with the Fourth Amendment.

But Barack Obama does not recognize anyone’s authority higher than his own. He thinks he’s a king, or an emperor. All the more reason to distrust the NSA surveillance program.

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