Edward Snowden’s theft and disclosure of highly classified National Security Agency counterterrorism programs has generated a lot of discussion about finding the right “balance” between security and liberty. The word “balance” assumes that there is a zero-sum game: more of one is less of the other. But security and liberty are reinforcing values: we either get more of both, or less of both. Done right, government policies and laws that make the nation more secure – like those authorizing electronic surveillance – should not undermine our constitutional rights. Emphasis: Done right.
Are we doing it right? A lot of people—me included—worked very hard to make sure that constitutional protections were built in to our present system. Intelligence has thwarted plots to attack us and saved countless innocent lives. But that shouldn’t blind us to the need for debate and possible overhaul: not because of Edward Snowden, but because times have changed.
The Evolving Threat
The starting point has to be the threat, and that is shifting. 9/11 was a seismic event: it showcased al Qaeda’s ability to attack out biggest symbols and kill thousands of people. Our response was swift and geared to protect against future large-scale attacks. Most observers now believe that rather than an attack directed by al Qaeda leadership, we will be faced with lone wolves and small groups who have been radicalized on the internet, not in a camp in Afghanistan or Pakistan. Their tactics are low tech, flexible, easily learned and executed. This evolved threat matrix requires an evolved response.
But it doesn’t mean we can drop our guard. While the number killed by lone-wolf attacks every year may be small, even low casualty figures are amplified by the visceral pain of the acts, the fear they generate, their unpredictability, and the way they make our public spaces feel vulnerable. Propaganda is much easier on the web. And social media is a goldmine for terror: Facebook is a place to make contacts, recruit and spread information. Al Qaeda in the Islamic Maghreb’s Twitter account follows Al Shabaab and the al Nusra front in Syria, and has gained thousands of followers. So the need for intelligence gathered electronically on the plans and intentions of terrorists is just as great, even if the threat is different.
Technology and the law
To track the threat, we may need enhanced tools. The questions we face are as much about technology as they are about terrorism. Techniques are possible that weren’t a few years ago; that doesn’t always mean they are desirable, or meet Fourth Amendment requirements.
Americans must be able to understand the framework, purpose, and built-in safeguards of our programs and policies. A public debate about protecting security and liberty begins with what the threats are and what our government should do—and has done.
Too few appreciate that there has already been legislative change in response to these concerns. In 2005, Congress rebelled when it learned that the Bush Administration was operating the Terrorist Surveillance Program (the first phone metadata program) under the President’s Article II Commander-in-Chief authorities in violation of the Foreign Intelligence Surveillance Act (FISA).
Congress amended FISA in 2008 to deal with the massive changes in technology since 1978, and added new protections for US persons even if outside the US. Congress also imposed a sunset, requiring renewal or revision of the new provisions every three years.
Similarly, the Patriot Act, passed by an overwhelming bipartisan vote shortly after 9/11, proved to be overboard, so Congress narrowed access to activities in libraries under Section 215. That section, along with two others, is also subject to three year “sunsets.” As these sections are set to expire in 2015, Congress has the opportunity to end or amend their authorities.
Transparency and Oversight
We need greater transparency about the legislation in place. Senate Intelligence Committee Chairman Dianne Feinstein suggests that Congress require annual reporting of the number of Americans’ phone numbers pulled from the NSA database, the number of individualized warrants obtained by the FBI and the number of times per year that any company is required to provide data to the US Government. President Obama has suggested that the FISA court review each query of the database to determine its propriety under the law and a “defense advocate” be established to challenge inappropriate government surveillance requests.
One huge missed opportunity has been a functioning Privacy and Civil Liberties Oversight Board, established as part of the 2004 Intelligence Reform legislation. All nominees were confirmed by the Senate in May 2013—nine years after its creation. Nearly a decade has been wasted as two presidents failed to appoint members to the board who could have been reviewing regularly the NSA and other collection programs.
When asked to identify the most difficult issue facing the Supreme Court, Chief Justice Roberts recently said that the court must identify "the fundamental principle underlying what constitutional protection is and apply[ing] it to new issues and new technology. I think that is going to be the real challenge for the next 50 years.”
That’s a tough task for the Court and a tough task for democracy. We can’t telegraph every move in advance or we cede the advantage to those who would do us harm. And we need to innovate in the collection of digital intelligence, because technology (and the terrorists) will even if we don’t. But our government is based on values—transparency and accountability among them. We need more security and liberty, and the public can help make this happen.