How much
of our privacy and how many of our constitutional rights are we willing to give
up to protect this country from violent attack?
Even before Edward
Snowden disclosed that the National Security Agency (NSA) was harvesting
seemingly every detail of our digital lives, our nation has been wrestling with
a Faustian bargain: How do we maintain fundamental American rights of liberty
and privacy while responding to the need to keep our country safe?
For many Americans,
the debate never really hit home until Snowden leaked details of the
government’s massive domestic surveillance programs.
The changes began with
the PATRIOT Act. Passed in 2001, the measure gave the government far-reaching
powers to conduct electronic surveillance. Among other provisions, the law
permits the collection of “any tangible things” that are “relevant” to an
authorized investigation to protect against international terrorism or
clandestine intelligence activities.
When Snowden blew the
whistle, the public learned that the government is using the PATRIOT Act to
collect the telephone “metadata” of millions of Americans without the
individualized suspicion required by the Constitution.
But the PATRIOT Act
isn’t the only law that rolled back our privacy in the past decade.
In 2008, Congress
amended the 1978 Foreign Intelligence Surveillance Act (FISA) to give the
government even greater leeway to spy on foreign persons suspected of espionage
or terrorism. Under this new amendment, Uncle Sam can directly order
communications companies, such as Apple and Google, to turn over the data
related to foreigners.
Although the law
prohibits the government from “intentionally” targeting persons in the United
States, Snowden’s disclosures revealed that surveillance programs created under
the FISA umbrella are collecting the conversations of Americans who communicate
with people located abroad. Government officials have even admitted that
gathering communications inside and outside the country is the special purpose
of these programs.
The PATRIOT Act and
FISA programs raise serious questions. How much of our privacy and how many of
our constitutional rights are we willing to give up to protect this country
from violent attack?
That we as a nation
only learned of these questionable programs through whistle-blowing disclosures
further highlights the need to end “secret law,” the practice by which the laws
passed by Congress are interpreted and applied behind closed doors by a small
group of government officials and federal judges.
Laws made and
implemented in secret restrict the opportunity for oversight, public debate,
and legislative correction — ultimately threatening the foundations of our
constitutional democracy. When the American people have no opportunity to
influence government policies — even those associated with national security —
democracy fails.
The road forward does
not have to be one of either liberty or security.
We can take steps to make our national security programs more transparent,
accountable, and ultimately more effective.
First, we need to ensure
that all government surveillance programs that affect privacy and
constitutional rights have a unique benefit. The government should be able to
tell the American people whether information necessary to impede violent
attacks could not be gained by more individualized surveillance measures.
Second, we must
guarantee protection for the rights of the American public during hearings of
the Foreign Intelligence Surveillance Court, or FISA court. The FISA court
approves government requests for surveillance under the PATRIOT Act and FISA,
but these proceedings are currently one-sided — no lawyer represents the rights
of millions of people living in the United States whose personal information
will be collected. A permanent panel of attorneys should be created to advocate
on behalf of the American public before the FISA court.
Third, the government
should facilitate transparency by publicly releasing declassified versions of
legal documents that substantively interpret the PATRIOT Act and FISA.
Finally, the executive
branch should promote government accountability and greater public awareness by
releasing comprehensive reports on national security policies and surveillance
programs.
Implementing these and
other recommendations will not be easy. But the Constitution and our democracy
demand that the government preserve not only our nation but the rights on which
it was founded.
Aimee Thomson, a second-year law student at New York University,
is a legal intern at the Project On Government Oversight. POGO.org