The National Security Agency has been compiling a database of everyone’s phone records. But don’t worry. According to the Obama administration, it’s just “metadata.” “The information acquired does not include the content of any communications,” says White House spokesman Josh Earnest. Analysts can only search “phone numbers and durations of calls,” says President Obama. “They're not looking at content.” James Clapper, the director of national intelligence, likens it to reading the Dewey Decimal number on the cover of a library book. You’re not seeing what’s inside the book.
In this context, meta means that the thing you’re talking about is really about something else. Metadata is “data that provides information about other data.” When Obama, Clapper, and other officials say they’re just collecting metadata, they’re basically saying it’s empty. It tells you that a call happened, but it doesn’t tell you what was said. It’s referential, derivative, hollow.
Unfortunately, that’s also true of the administration’s statements. Many Americans, upset about the NSA’s surveillance programs, are asking how the programs work and what they know about us. Obama and his aides claim to be answering these questions. But what they’re really giving us is meta-answers. They don’t tell us what the programs do and where they stop. They tell us, vaguely, how the boundaries—whatever they are—are drawn.
The administration says the programs are governed by a “robust legal regime,” “strict controls,” “strict restrictions,” and “very careful procedures and processes to ensure particularly that the privacy and civil liberties of Americans are protected.” The programs have “a whole range of safeguards,” says Obama. They’re “consistently subject to safeguards,” says Clapper. The NSA’s Internet monitoring program, for instance, follows “legislatively mandated procedures” that “are very precise.” But the law doesn’t specify these safeguards or procedures, and the administration doesn’t explain them. We’re told they’re precise, but we aren’t told precisely what they are.
The procedures Obama and Clapper talk about aren’t procedures for using the data. They’re procedures for approving procedures for using the data. They’re meta-procedures. White House Press Secretary Jay Carney assures us that “there are procedures for both requirements for judicial consent and review and for congressional review,” as well as executive branch “procedures … for monitoring these programs.” Clapper says his office and the Justice Department give Congress “exhaustive semiannual reports assessing compliance with the targeting and minimization procedures.” The reports may be exhaustive, but the standards are completely unexplained. What exactly are the “targeting and minimization procedures”?
Obama says there’s an “audit process.” That sounds great. What does the audit examine? According to the president, it ascertains whether “all the safeguards are being properly observed.” What are the safeguards? He doesn’t say. Clapper says the administration performs “regular on-site reviews of how Section 702 authorities are being implemented.” Cool. So how are those authorities being implemented? Again, no answer.
Clapper loves to talk about specifics. He says we can trust the phone surveillance program because “the FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions.” For instance: “Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.” What are these procedures and restrictions? He can’t tell us. “Orders that are issued by FISA judges are classified,” Earnest explains. “In terms of specific operational details, I just can't get into them.” Instead of specifics, we get vague assurances that the court orders and their implementation are precise.
The other meta-procedure that’s supposed to keep NSA procedures tight, according to the administration, is “very robust congressional oversight.” Last week, Obama asserted that “every member of Congress has been briefed” on the phone surveillance program. When reporters pointed out that many members of Congress seemed unaware of it, the administration revised its language. “Members of Congress were briefed or had the opportunity to be briefed,” said Carney. Earnest cited a Justice Department letter about a document that had been sent to the congressional intelligence committees “to be made available to all members.” A letter referring to a document inviting the committees to refer the information to lawmakers. That’s two levels of meta.
Obama’s favorite defense of the NSA is meta-democracy: Congress is a surrogate for the people. “Your duly elected representatives have been consistently informed on exactly what we're doing,” he says. When informing 535 representatives is too dangerous, the administration informs just the intelligence committees or the gang of eight—the leaders of each party in each house, plus the intelligence committee chairmen and designated minority-party representatives from those committees. That’s four people duly elected by your duly elected representatives, plus four other people selected by those four people. Three more levels of meta.
What exactly did the briefings cover? The White House says they addressed the “provisions” and “authorities” under which the NSA acts. That isn’t a briefing. It’s a meta-briefing. Clapper says if any lawmaker “had asked for a specific briefing or follow-up questions, we certainly … would have responded.” To get the details, you have to know enough to ask.
The administration says the surveillance programs have been “publicly discussed” in “extensive public debate” with “public votes” by Congress. They’re “conducted under authorities widely known and discussed and fully debated,” according to Clapper. But those debates were about the Patriot Act, not about how the law was applied. That isn’t transparency. It’s meta-transparency.
I can’t criticize this behavior without including myself. Last week, when the Guardian exposed the phone surveillance program, I defended the program. I pointed out that it didn’t collect the content of phone calls, that it was time-limited by court orders, and that it was judicially and congressionally supervised. The concrete factors I cited—the 90-day expiration on the court order, and the distinction between metadata and wiretapping—draw clear boundaries to surveillance. But the oversight provisions, which sounded good, don’t. Those aren’t limits. They’re meta-limits.
I’m not saying the surveillance system has no rules. It does have rules. The leaked court order substantiates Clapper’s assertion that orders for phone records have to be renewed every 90 days. At a Senate hearing yesterday, NSA director Keith Alexander confirmed that “the vast majority of records in the database are never accessed and are deleted after a period of five years.” Those limits aren’t absolute—the orders have been extended for years, and some records are retained indefinitely—but at least they’re intelligible. What we need is more clarity. Clapper says the FISA court “only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.” What does that mean? What’s reasonable suspicion? What level of facts? What degree of association?
What we don’t need is more linguistic trickery. We can’t have a director of national intelligence who deceives himself and others about the meaning of “collect.” And we can’t have a president who substitutes procedural for substantive answers. When reporters ask whether the NSA is operating under an unduly flexible interpretation of the law, the reply from the White House—“It’s the view of the President that there is in place a very strict oversight regime”—isn’t an answer. It’s a meta-answer. Give us the real thing.
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