Geoffrey Stone Added to NSA Surveillance Review Committee

Today the White House formally released the names of the committee of “outside experts” to review the NSA’s surveillance practices. A fifth name was added to the list beyond the four leaked last week: Professor Geoffrey Stone of the University of Chicago Law School. I debated Professor Stone on national security surveillance issues back in 2005 or 2006 for a U of C Federalist Society event. Based on that experience, my sense is that he will come at the issues from a strong civil libertarian perspective, with the caveat that he is not a subject matter expert in surveillance law or technology. Stone is the author of the book Top Secret: When Our Government Keeps Us in the Dark , which you can watch him and others discuss here.

UPDATE: A google search pulls up a recent interview of Stone on Amy Goodman’s Democracy Now! program in which Stone suggests a different perspective from what I would have guessed:

Geoffrey Stone: . . . [T]here is, so far as I can tell from everything that’s been revealed [by Edward Snowden], absolutely nothing illegal or criminal about these programs. They may be terrible public policy—I’m not sure I approve of it at all—but the fact is the claim that they’re unconstitutional and illegal is wildly premature. Certainly from the standpoint of what’s been released so far, whether Mr. Hedges likes it or not, or whether Mr. Snowdon likes it or not, these are not unconstitutional or illegal programs.

Amy Goodman: Let me go to a letter that you co-signed, Professor Stone, in 2006 with other prominent attorneys about NSA surveillance under President Bush. You were criticizing it. You wrote, quote, “Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.” How do you compare that to what we’re seeing today?

Geoffrey Stone: They’re two completely different programs. The Bush NSA surveillance program was enacted in direct defiance of the Foreign Intelligence Surveillance Act. The Obama program, if we want to call it that, was approved by Congress. That’s number one. Number two is, the Bush program involved wiretapping of the contents of phone conversations. The Supreme Court has long held that that is a violation of the Fourth Amendment, if there’s not an individualized determination of probable cause. The Obama program, if we want to call it that, does not involve wiretapping; it involves phone numbers. And the Supreme Court has long held that the government is allowed to obtain phone records, bank records, library records, purchase records, once you disclose that information to a third party. And there is no Fourth Amendment violation. So they’re two completely different programs.

Amy Goodman: But if you just heard our conversation with the mathematician Susan Landau, she argued that often metadata is more revealing than the transcript of an actual conversation. Do you think the law should change, Geoffrey Stone, to include this metadata?

Geoffrey Stone: Well, I’m not persuaded by her argument that it’s more revealing. I do believe that it’s problematic, and I think, in fact, there should be statutes that prohibit the gathering of this type of data by private entities, as well as by the government, in the absence of at least a compelling justification. And I thought the Supreme Court’s decisions initially on this question were wrong. So I would certainly want to see them differently. But in terms of what the law is, it’s not unconstitutional, it’s not illegal, and it’s completely different from what the Bush administration was doing.

. . . .
Let me make another point about civil liberties here, by the way, that it’s extremely important to understand that if you want to protect civil liberties in this country, you not only have to protect civil liberties, you also have to protect against terrorism, because what will destroy civil liberties in this country more effectively than anything else is another 9/11 attack. And if the government is not careful about that, and if we have more attacks like that, you can be sure that the kind of things the government is doing now are going to be regarded as small potatoes compared to what would happen in the future. So it’s very complicated, asking what’s the best way to protect civil liberties in the United States.

. . . . Now, maybe it’s true. I mean, maybe Chris Hedges is right, and maybe that—that Snowden is a hero, and maybe this is all a fraud on the part of the government, this information serves no useful purpose, and it’s fundamentally important to the United States that it’s been revealed. Maybe that’s true. And if it turns out to be true, then I’ll be the first to say Snowden was a hero. But at the moment, I have absolutely no reason to believe that.