WASHINGTON, June 13, 2013 — Discussion of the revelations about the NSA’s program of domestic surveillance has predictably focused on two things: the Obama Administration’s responsibility for expanding the government’s mandate to perform such surveillance under the PATRIOT Act, and the role of Edward Snowden.
Whether Snowden is a hero or a criminal is a matter for the courts to decide. Indeed, there’s nothing to preclude him from being both. However, Snowden, his motives, and the obligations imposed by his security clearance are side issues. The Obama Administration’s role in the data-gathering endeavor is of huge political interest and will serve as a bludgeon to those whose interest is primarily political. That doesn’t mean that it’s unimportant, but again, it’s peripheral to the real issues.
The real issues are more basic: How do we balance the needs of national security with rights of privacy? How can we best monitor the domestic intelligence gathering activities of government agencies while maintaining the secrecy that allows them to function? And most importantly, to what extent should we trust the government to gather data on every American that could, in principle, allow an investigator to lay bare an individual’s every communication, financial transaction, the sum total of a person’s social existence?
The Obama Administration has argued that no such abuse has occurred. There are two obvious responses to that: “How do we know that you’re not lying?” and “If you aren’t lying, how can we be sure that this power won’t be abused in the future?”
The answer to the first question is, we don’t. In fact, we know that the administration has already lied about its surveillance programs. At a March 12 Congressional hearing, National Intelligence Director James Clapper was asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper replied, “No sir … not wittingly.”
In an interview with NBC’s Andrea Mitchell, Clapper admitted that that testimony was a lie. “I thought, though in retrospect, I was asked [a] ‘when are you going to … stop beating your wife’ kind of question, which is … not answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful, manner by saying, ‘No.’ ” We should note that the question was not an ambush; it was given to him beforehand, granting him a day to craft this “least untruthful” of responses.
The answer to the second question is, we can’t. The Obama Administration is incapable of assuring us that the information gathered by the NSA will not be abused. It forfeited the benefit of any doubt with Clapper’s lie. Even if we believed the administration, we have no idea how effective the oversight is on these programs, and so we can’t know whether it has failed.
Administration officials and some members of Congress have argued that the surveillance programs are an important element of our defense against another 9/11-type terrorist incident. They weigh the threat of terrorism against the loss of privacy and conclude that the demands of national security should take precedence.
The argument they present assumes that the programs must operate completely in the dark, with appropriate, yet equally dark oversight. The only way to avoid abuse of these programs in a democracy like ours is by transparency and sunlight; we can have no confidence in the oversight, however effective it may be, if it is as secret as the programs it guards us from. We must be able to discuss these programs, in general if not in specifics, and there must be a way to let Americans know something about what is permitted and what is done by way of domestic surveillance.
President Obama said at a June 7 press conference, “We’ve got congressional oversight and judicial oversight and if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure we’re abiding by the Constitution, due process and the rule of law, then we’re gonna have some problems here.”
That in a nutshell is the problem. The institutions that are supposed to protect us from intelligence abuses have already failed, and in spectacular fashion. We trusted the intelligence community and their political overseers prior to the Iraq war. The Bush Administration leaked some classified information to support their assertions about other material that remained classified, but their leaks were selective, hence deceptive. Do we really want to trust the intelligence community and its political masters again, believing again that they really are doing what’s right and necessary, and no more, to fight this other, more secrecy-shrouded war, the war on terror?
Trust is essential to our political system, and it’s essential to the way we deal with those parts of government that must remain secret. But trust in the institutions that oversee the intelligence community and its surveillance programs has been betrayed. The Obama Administration has not shown itself capable of rebuilding that trust. Ronald Reagan was fond of saying, “trust, but verify.” In this situation “verify” can only mean public, transparent oversight of some kind. Without it, we should never assume that the power held by the NSA isn’t being abused, and if we can’t assume that, we should not grant the NSA that power.
James Picht is the Senior Editor for Communities Politics. He earned his PhD in economics before spending several years working for the Asian Development Bank and as a consultant and contractor for the U.S. State and Treasury departments in Russia, the Balkans and Central Asia. An associate professor of economics at Louisiana’s designated honors college, the Louisiana Scholars’ College, he has also taught principles of constitutional law and criminal procedure under a USAID program in Ukraine.
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