There’s no NSA scandal (yet), but Obama should explain the situation

I agree with John that, from all that appears so far, the NSA’s collection of phone records is not a scandal. No law appears to have been violated; the administration proceeded with permission from the appropriate court; Congress was in-the-loop; and there is no evidence (to my knowledge) that the information NSA obtained was used abusively, oppressively, or in a discriminatory or partisan way.

Moreover, as John explained, NSA’s data collection is consistent with the Constitution under existing precedent, although the constitutional issues associated with the war on terror always seem to be up for grabs.

If there is any scandal, I believe it resides in the leaking of classified information about NSA’s PRISM program. The Washington Post says it received PowerPoint slides and supporting materials about PRISM from a career intelligence officer. That officer has committed a crime. He or she should be pursued and, if identified, prosecuted. If journalists have engaged in criminal activity, they should also be prosecuted.

There may also be the whiff of a minor scandal in the testimony of James Clapper, the Director of National Intelligence. In testimony before Congress, he recently denied that “NSA collect[s] any type of data at all on millions or hundreds of millions of Americans.” Clapper has some explaining to do.

But big picture, I don’t see a scandal here. As things stand now, I see, instead, a lawful program about whose merits reasonable people disagree. There’s a difference between that and a scandal.

Finally, what about John’s suggestion that, even absent a scandal, “we are overdue for a public debate about privacy”? Privacy is a big topic and there may be aspects of it that warrant a public debate. Whether such a debate should focus on issues relating to the war on terror depends, I suppose, on the extent to which the public considers PRISM and other such data collection programs — correctly understood — to be problematic.

But news about the NSA program should prompt additional discussion about the war on terror itself. In a speech to the National Defense University, President Obama recently implied that this war is winding down, and he said that the war needs to be redefined lest it define us. He also said quoted James Madison as having said: “No nation could preserve its freedom in the midst of continual warfare.”

These statements aren’t inconsistent with practices such as the NSA’s PRISM program. But when Obama downplays the threat posed by terrorists, he risks reducing the extent to which Americans will accept potentially intrusive domestic “spying” practices.

Accordingly, it would be a good idea for Obama to explain how such practices fit into the “redefined” war on terror that he has in mind. This topic was not included in his speech to the National Defense University because the practices were secret. But now that the cat is out of the bag, Obama should circle back and discuss it.

I have no doubt that the president can defend NSA practices even in the context of the more limited war on terror he contemplates. But the public deserves to hear his case for the massive access to personal information he has decreed.