Shifting ground on NSA surveillance

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Media captionFormer NSA Director Hayden says the US surveillance programme will have to change

The National Security Agency surveillance story is moving at an accelerated pace this week, with a US federal court ruling that phone data collection is "likely unconstitutional" and a presidentially appointed task force calling for significant reforms.

On Wednesday, former NSA Director Michael Hayden told the BBC's Katty Kay that the agency is going to have to change the way it operates, even if that affects its ability to gather intelligence. "We're in a new culture," he said. "We have shifting standards. They're going to have to be more transparent."

The ground beneath the NSA and the Obama administration is shifting, and people on both sides of the surveillance issue are scrambling to keep their footing.

"The advisory committee's recommendations point to a possible turning point in an ideological battle over the operations of a national security state," writes Salon's Natasha Lennard. "The report is an important recognition that pre-emptive, prefigurative mode of policing and surveillance is not only unconstitutional, but also practically inefficacious if the aim is preventing terror attacks."

Benjamin Wittes writes in the blog Lawfare that although the review group "pulls the rug out" from the Obama administration's position on NSA intelligence gathering, it is unlikely to change minds in the White House.

"To put the matter bluntly, there is no way the administration will embrace a bunch of these recommendations," he writes. "And from this day forward, any time the White House and the intelligence community resist these calls for change, the cry will go out that Obama, in doing so, is ignoring the recommendations of his own review panel. And the cry will be right."

According to former George W Bush administration lawyer David Rivkin, the Obama administration would be right to resist changes to its surveillance programme. "There's absolutely no seriously well-conceived explanation for why the change is necessary, either from a standpoint of the operational needs of the intelligence community in the age of global terror or from a standpoint of abuses," he told BBC Newsnight's Jeremy Paxman on Wednesday.

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Media captionLawyer David Rivkin and Glenn Greenwald, the former Guardian columnist, put their arguments forward to Newsnight's Jeremy Paxman

Later on the same show, Glenn Greenwald, the former Guardian columnist who helped publish Edward Snowden's leaked NSA documents, told Paxman that the review group's findings were "a complete vindication" for Mr Snowden and recent reporting on the NSA's surveillance.

"The NSA is an out-of-control rogue agency that in all sorts of ways is abusing its power," he said. "This is one important step in curbing the domestic portion of those abuses."

With a federal judge now on the record questioning the constitutionality of the NSA data collection, supporters of the programme are concerned about the implications of the courtroom drama. The National Review's Fred Fleitz is confident the Supreme Court will overturn the lower court decision - but that may not be the surveillance programme's major obstacle.

"The challenge now is for the Obama administration and Congress to resist the media hysteria that the decision will whip up," he writes.

Even the programme's opponents are not optimistic about victory if and when the case makes it to the Supreme Court, which in an earlier decision had ruled that the government could access records held by third-party companies, such as telecommunications providers.

"According to the Supreme Court, remotely stored information receives only as much protection as legislators decide to give it," writes Reason magazine's Jacob Sullum. "Unless a statute says otherwise, government snoops may peruse our electronic lives at will."

Syndicated columnist Froma Harrop agrees on the court precedent, but disagrees that the NSA's actions constitute government snooping. "Yes, the surveillance program does sound creepy," she writes. "But in fact, these are computers shuffling the data for worrisome patterns. Humans can't peak at the content without a court order."

Former Homeland Security Secretary Michael Chertoff writes that attacks on the NSA's programme are misplaced:

Perhaps the fundamental misunderstanding that underpins criticism of bulk phone record collection is that an intelligence investigation looks only at the suspect. In fact, even when a suspect person or phone is identified, what matters is whether there is a relationship with others. Inevitably, innocent third parties will cross the radar screen.

The New Yorker's Ryan Lizza disagrees. In an in-depth look at the development of the modern US surveillance apparatus, he writes that the NSA programme "inverts the crucial legal principle of probable cause: the government may not seize or inspect private property or information without evidence of a crime".

Although many pundits are calling this week's NSA news a turning point, others are more pessimistic. The American Prospect's Paul Waldman writes that it would take some extraordinary developments to change things now:

If Edward Snowden's goal was to show the public what is being done in our name, he succeeded. If his goal was to arrest the expansion of the surveillance state, it's becoming apparent that he failed. Perhaps there will be some scandal in the future that's so horrifying it will make change impossible to stop - let's say it turns out that NSA chief Keith Alexander is running a covert black ops squad that goes rogue and starts assassinating mayors and governors who get in its way. But short of that, it looks like it's going to be full speed ahead.

Yes, it was only a matter of time before commentary on NSA surveillance started sounding like a plot for the next Jason Bourne movie.