The Webster Test in the Snowden era

In light of the continuing stream of Edward Snowden ‘leaks’, lawmakers should take away an important lesson—if they are not comfortable with the New York Times or the Washington Post running an exposé on a government program, then don’t authorize that program. This may seem like an obvious tenet, but, as we all know, the Snowden ‘affair’ has shown us differently. 

In the age of 24-hour news coverage, Facebook and Twitter, there is a high likelihood that any action undertaken by our government will find its way into the glaring media spotlight. Given our techno-centric world, it is imperative that government actions, especially government intelligence programs, be able to pass the Webster Test.

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The Webster Test stems from William H. Webster’s tenure as Director of Central Intelligence (DCI) from 1987 to 1991. As DCI, Webster would not recommend to the president any CIA proposal for covert action that would not be able to withstand public criticism if revealed. If “a normal American would not say, in such a circumstance, ‘Oh, now I understand. Of course my government is taking these secret actions. It makes great sense in the world as I know it and is consistent with U.S. policy as I know it'” then Webster would not support the use of covert action. The Webster Test should be baked into all national security debates.

The Snowden leaks, and the ensuing embarrassment to the Obama administration, highlight the necessity for classified programs to pass the Webster Test. If the Obama administration had applied the Webster Test to the NSA metadata and telephone collection programs, it would have been spared from the public scrutiny and the embarrassment that has plagued President Obama’s second term.

If the Webster Test had been applied, administration officials would have realized that these programs would not have passed the test in a country that prides itself on the protection of American civil liberties. Yet, the administration did not use this commonsense test, so now it must face the repercussions of its actions.

Domestically, the NSA spy programs failed the Webster Test for two reasons. First, during his presidential campaigns, President Obama led the public to believe that he would follow a more open national security platform than his predecessor, which left a different impression than the current reality. In fact, Snowden claims that President Obama’s ‘failed’ campaign promises motivated him to leak information.

Second, and in conjunction with the first reason, a sensationalist ‘leaker’ revealed the NSA spy programs to the public on Obama's watch. If the administration had kept its campaign promises and authorized programs that fell in line with these promises, then any program leaked to the press would not have resulted in such a public outroar. Why? Because, in effect, the authorized programs would have already been prepared for potential disclosure. In short, the programs would have passed the Webster Test.

The NSA spy programs in question also failed the Webster Test, internationally. Recent allegations that the NSA monitored the phone calls of German Chancellor Angela Merkel, as well as those of at least 34 other foreign leaders, exemplify this failure. Lisa Monaco, the Assistant to the President for Homeland Security and Counterterrorism, said in a USA Today op-ed, “We want to ensure we are collecting information because we need it and not just because we can.” in response to the recent allegations of international eavesdropping. If this notion were applied before the leaks, the U.S. would likely not have spied on many of its closest allies and, subsequently, passed the Webster Test. After all, two months ago, Obama said, "If I want to know what Chancellor Merkel thinks, I give her a call." So, why is there a need to spy on her?

While the Obama administration has borne the recent brunt of public criticism, it is important to remember that the application of the Webster Test is not a partisan issue. Former President Bush would likely have been spared from public criticism, if he had applied the Webster Test when contemplating whether or not to authorize the NSA to engage in warrantless surveillance of phone-calls and emails to and from the U.S. under his Terrorist Surveillance Program (TSP). Like the current president, President Bush found his second term plagued by disclosures of government actions, like TSP, that could not withstand public scrutiny.

Ultimately, current and future lawmakers should take away the important lesson of using the Webster Test when authorizing classified programs. The past two administrations ignored the Webster Test and found themselves mired in domestic and international controversy. It seems that William H. Webster’s experience as a federal judge, Director of the FBI and DCI led him to use a commonsense principle when making decisions—if an intelligence operation ends up in the public domain, make sure, on the front end, that the average citizen can understand its value. Lawmakers should adopt this principle. 

Godfrey is a senior history major at Yale University.