Even if former NSA contractor Edward Snowden is a traitor, which many have been quick to conclude (without full knowledge of the facts), that does not make his constitutional concerns any less valid.
The same concerns were raised more than a decade ago by then Senator Chuck Hagel, now secretary of defense, and were addressed in a 2003 report by the inspector general of the Department of Defense, who made recommendations designed to protect Americans against metadata abuses. I know because I was that inspector general.
One of the 2003 DOD recommendations would have established a “privacy ombudsman or equivalent official,” providing the likes of Edward Snowden a legal outlet to raise constitutional concerns, at least at the development stages of metadata technology.
At the operational stage, of course, the need for such a legal outlet is now only too apparent. So aside from any traitor issues, an arguably more important factual question now is whether or not DOD and NSA ever implemented the 10-year-old recommendations of the DOD, prompted by the senator who is now secretary of defense, to ensure that constitutional rights of American citizens are respected and protected in the course of collecting metadata.
My guess is that many of the 2003 civil liberty and privacy recommendations of the DOD associated with metadata collection were never implemented. No need to guess, however; someone ought to investigate if and how well those 2003 DOD civil liberties and privacy recommendations have been either implemented or supplanted by better recommendations, and then, to quote our Declaration of Independence, “Let Facts be submitted to a candid World.”
Just before Christmas, a federal judge in Washington, D.C., essentially confirmed some of the constitutional concerns raised by former NSA consultant Edward Snowden: According to U.S. District Court Judge Richard Leon’s Dec. 16, 2013, opinion in Klayman v. Obama: “I am convinced that the surveillance program now before me is so different from a simple pen register [at issue in Smith v. Maryland, 442 U.S. 735 (1979),] that Smith is of little value in assessing whether the Bulk Telephone Metadata Program constitutes a Fourth Amendment search. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.”
Two days after Christmas, a different federal judge in New York reached the opposite conclusion in another legal challenge of the NSA’s metadata program captioned ACLU v. Clapper: “Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment . . . The right to be free from searches and seizures is fundamental, but not absolute . . . Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness.”
Speaking of reasonableness, according to the Dec. 12, 2003, report of the inspector general, then-Sen. Chuck Hagel had “raised a concern that the separation of responsibilities between the military and domestic police functions be maintained as specified in the Posse Comitatus Act.” In response to Hagel’s concerns, the DOD inspector general undertook an audit “to assess whether the proper controls are being included in the developmental contracts [for what at the time was called the ‘Total Information Awareness (TIA) Program’ of the Defense Advanced Research Projects Agency, aka DARPA] to ensure that the technology is properly managed and controlled when placed in an operational environment.”
The original DOD audit announcement explained that the audit “will include an examination of safeguards regarding the protection of privacy and civil liberties.”
The audit ultimately concluded: “DARPA could have better addressed the sensitivity of the technology to minimize the possibility of any governmental abuse of power . . . The Under Secretary of Defense for Acquisition, Technology, and Logistics (USD (AT&L)) in coordination with the Director, DARPA should perform a privacy impact assessment before TIA type technology research continues. In addition, USD (AT&L) should appoint a Privacy Ombudsman or equivalent official specifically for the development of Terrorism Information Awareness type technology who will ensure that individual Terrorism Information Awareness type technology are scrutinized from a privacy perspective as a means of safeguarding individual privacy.”
According to the 2003 inspector general report, the then director of Defense Research and Engineering concurred in the DOD’s recommendation that a “Privacy Ombudsman or equivalent official” be appointed “specifically for the development of Terrorism Information Awareness type technology who will ensure that individual Terrorism Information Awareness type technology are scrutinized from a privacy perspective as a means of safeguarding individual privacy.”
Where was this “Privacy Ombudsman” to address the concerns of Edward Snowden?
The American people, through their representatives in Congress, should demand to know precisely what ever came of the 2003 recommendation to ensure that the operational employment of information technology within the DOD, including NSA and its independent DOD agencies, be scrutinized to safeguard civil liberties and privacy.
Whoever was appointed “Privacy Ombudsman or equivalent official” based on the 2003 recommendation of the DOD should be held to account for what is now a judicially-acknowledged violation of “a reasonable expectation of privacy.” And if the 2003 recommendation of the DOD to appoint such a “Privacy Ombudsman or equivalent official” was not carried out, the individual(s) who made the decision not to follow the recommendation of the DOD IG in 2003 to safeguard civil liberties and privacy should be held accountable.
Edward Snowden may need to account for what he did or did not do in the course of raising the constitutional concerns he chose to raise publicly, but there are others within government who in all likelihood also need to account for their choices.
Holding those officials accountability should not involve disclosure of classified information. So considering the importance of the constitutional concerns raised both by Edward Snowden and 10 years ago by Hagel, “Let Facts be submitted to a candid World.’’
Joseph E. Schmitz served as inspector general of the Dept. of Defense from 2002-2005 and is CEO of Joseph E. Schmitz, PLLC. Read more reports from Joseph E. Schmitz — Click Here Now.
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