Provisions of the Patriot Act passed after 9/11 that have enabled the bulk collection of cell phone and Internet usage exposed by the Edward Snowden leaks will sunset on June 1, and the legislative responses range from reauthorizing without changes to reform to repeal.
It’s the current version of the ongoing tension between the need for secrecy for national security and the protection of privacy and civil liberties.
When we give our national security apparatus the authority to conduct law enforcement in secret, the only protections we have are the checks and balances we build into the system. How far we let government go — how worried we are about abuse and overreach — depends in large part on how well we think the checks and balances are working.
The past record tells a story and it is a dubious one.
In 1976 a Senate select committee found that COINTELPRO, the FBI’s covert operations to discredit anti-war and civil rights organizations and leaders, violated laws and infringed on rights because the intelligence agencies didn’t think the law applied to them because of national security.
There’s the Federal Intelligence Surveillance Court to which the intelligence agencies must apply for warrants. But it operates in secret, its rulings and interpretations of law are secret, it only hears from the government, and it has granted incredibly broad authority for data collection and query.
Congressional oversight committees are supposed to be a check, but they don’t always get the whole story and they can’t tell us the story they do get because it’s classified.
There’s the Privacy and Civil Liberties Oversight Board Congress created in 2004 as the press was revealing the Bush administration practice of conducting warrantless wiretaps. But the five-member board didn’t begin its work until 2013 due to partisan bickering over membership.
So for nine years the board created to watch what the government was doing couldn’t watch anything the government was doing. When it finally issued its report in 2014, it found the government shouldn’t be doing what it was doing.
The final check, the one it seems we ultimately depend on, is the individual conscience.
Traitor or hero debate aside, I wonder how we would have known about the extent of the surveillance into our daily lives if Snowden hadn’t leaked documents.
After the leaks in 2013, President Barack Obama defended the surveillance as a “circumscribed narrow system” with the right balance. Then the review group he subsequently appointed recommended an end to the program as it currently exists and suggested limits on data collection and queries and the addition of a public advocate to secret court proceedings to make sure privacy and civil liberty concerns were heard.
When the checks aren’t working, it is necessary to rebalance.
National security has always provided an excuse for secrecy and ignoring the law. Then-FBI Director J. Edgar Hoover order COINTELPRO to “pinpoint potential troublemakers.”
I would hope all of us would be troublemakers at some time.
And that, at some point, we would find enough passion for a cause at any level of government to devote time and energy to righting perceived wrongs, shaking things up and changing the status quo.
That’s what our democracy has always been about. Secrecy and the authority to obtain information are necessary for our national security. But we should be concerned as much with what intelligence agencies could do as we are about what they are doing.
And so it is troubling that government could use secrecy and the veil of national security to trample privacy rights or stifle dissent to protect those in power or those to whom they feel beholden.
We know it has happened before. The checks in place have been inadequate.
When Congress considers reauthorizing Patriot Act surveillance, it ought to contemplate that public confidence in those we charge with protecting us is the most important element of our national security. Confidence, faith and trust fade when those with authority stray far afield, assume authority they do not have, or deliberately deceive us.
When government officials say they need something for national security reasons, they may be right. But when it comes to protecting the rights of citizens and they say, “Just trust us” – don’t.
Ron Eachus of Salem is a former legislator and a former chairman of the Oregon Public Utility Commission. His column appears on Tuesdays. Send email to firstname.lastname@example.org.