My law school classmate Tim Edgar has a very interesting opinion essay in the Wall Street Journal arguing for greater transparency of the NSA’s surveillance activities. That message isn’t new, of course, but Tim’s unusual career gives him a special insight into the issue: He’s a former ACLU lawyer who then went to work for the Director of National Intelligence as a civil liberties specialist. (You can read about Tim’s very interesting background here). So Tim is both a civil libertarian and someone who has actually seen how the surveillance programs work. Tim’s basic argument is that transparency would help restore trust in the government by showing the public how seriously the intelligence community takes privacy, a point that secrecy hides from public view.
An excerpt:
Queries of telephone-call records require that the targeted number is connected to an international terrorist organization. The targeted numbers must meet a well-defined legal standard—that of reasonable, articulable suspicion—and may only then be used to uncover, through sophisticated data analysis, the network of numbers with which the target has been in contact over time. Privacy safeguards are administered by teams of national-security lawyers in multiple agencies, and the entire process is subject to both congressional oversight and review by the FISA court. When the court and Congress identified compliance issues, the NSA took them seriously, overhauling their systems and creating a new office of compliance to address them.
What, then, accounts for the public mistrust? Intelligence officials forget that the public sees none of this. Where the government sees three branches of government working together in harmony, the public sees a disturbing pattern of secret law and secret government accompanied by demands to “trust us, we are keeping you safe.” Secret checks and balances appear to be nothing more than a pale shadow of our constitutional design.
. . .
Many aspects of surveillance must remain secret. For example, the government should never provide a list of companies from which it acquires big data sets. Despite what Americans see in the movies, the NSA doesn’t actually collect everything. Knowing which companies are included and which are not would tip off terrorists about how to avoid detection—telling them which providers to use and which to avoid. Likewise, the government will never be able to confirm or deny whether particular people are under surveillance, but it should avoid the temptation to use this necessary secrecy to avoid meeting legal challenges to its activities. The government has good arguments for why its programs are both vital for national security and perfectly constitutional. It should make them.