National security needs secrecy but also accountability

Posted Saturday, Jun. 15, 2013  comments  Print Reprints

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The newest revelations about the U.S. government collecting communications data underscore our hallowed American heritage of jealously guarding our privacy rights.


Actually, “privacy” from government snooping is not specifically addressed in the Constitution, even though that founding document does protect the right to be free from unreasonable searches — that is, searches without a warrant to justify official intrusion into personal space.

Various parts of U.S. law recognize that Americans enjoy some expectations that Big Brother won’t be watching their every innocent move. And even though Americans are increasingly tolerant of sharing their most-personal details across social media networks, with merchandisers and in order to enjoy many modern conveniences, there’s a certain indignation that wells up upon learning that the feds are listening and looking in, too.

We want to be safe — but at what cost to individual freedom?

Reports about the secret surveillance program called PRISM, based on classified data leaked by a since-fired government contractor, have stirred the kind of debate that civil libertarians have been trying for years to get the American public to engage in.

After the Sept. 11, 2001, terror attacks, it turned out, the Bush administration not only was monitoring communications U.S. residents had with foreign terrorism suspects abroad, but was doing that wiretapping even without specialized warrants.

After The New York Times revealed the existence of the National Security Agency’s Terrorist Surveillance Program in 2005, consternation swirled around whether it went beyond proper executive powers.

Congress in 1978 had set up the Foreign Intelligence Surveillance Act Court to protect against illegal domestic spying. If the government determines that the nation’s security requires wiretaps to track foreign terrorists, the Justice Department must obtain FISA court permission. People in the U.S. can’t be targets, but their communications with foreign targets can be obtained.

But the FISA court, whose 11 judges also serve on other federal courts, works in secret. Unlike other courts, the proceedings aren’t adversarial: Only the government gets to make a presentation. And its rulings aren’t made public like those of other federal courts.

The court does report to Congress annually, but basically to indicate how many requests the government made to conduct foreign intelligence surveillance and how the court dealt with them.

For instance, during calendar year 2012, the government made 1,789 applications to conduct electronic surveillance and withdrew one, and the court granted 1,788, making changes in 40 of them, according to a report made in an April 20 letter to Sen. Majority Leader Harry Reid, D-Nev.

Recent disclosures about the Obama administration’s NSA collecting millions of phone and Internet communications records have shined a new spotlight on the FISA court because it issued orders authorizing the data collection.

But now, a group of eight senators, Republicans and Democrats, is calling for the Justice Department to declassify FISA court rulings or at least summaries that don’t harm national security.

In a news release, several of the senators talked about finding the right balance between safety and civil liberties. It’s terribly tricky: Americans abhor Big Brother, but they abhor backpack bombings, too, probably more.

Deterring terrorists demands some secrecy, but it also demands oversight to prevent government from ensnaring people who are just minding their own business.

In a kind of microcosm of our three-branch system, Congress has set up the FISA court to oversee the executive branch as it does its job of protecting the public. But if that mechanism isn’t preventing abuses under its operating rules, members of Congress can and should correct that, instead of just feigning outrage that the U.S. government is engaging in spying.

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