It may be a while before we understand the implications of the latest revelations (harvested, to be clear, from leaks by Edward Snowden) in today’s Washington Post about the National Security Agency’s violations of the rules under which it is operating in surveillance of phone and email data. But what is pretty clear from Barton Gellman’s reporting, and from a counterpart piece by Carol Leonnig on the FISA court, is that oversight of NSA is very shaky at best. The number of NSA violations may not immediately tell us their scope as a proportion of overall surveillance activities, but does show self-regulation by NSA isn’t working. Congress knows remarkably little about the surveillance programs. And now, thanks to Leonnig, we know the FISC is pretty much in the dark as well.
TNR’s Marc Tracy gets to the heart of the problem very succinctly:
There is a valuable, vital debate to be had over how much the federal government, in its intelligence programs, ought to be permitted to violate Americans’ privacy in an effort to protect Americans from a dangerous world that includes people who want to kill Americans. There are many different places where the important red lines can be drawn in this debate. It is a debate strewn with well-intentioned, conscientious people who would draw those lines at very different places. Let’s even be generous and stipulate that the question of whether the statutorily provided oversight of these programs belongs, as well, to that debate.
The terrifying thing is that we are not having that debate. As these documents are the latest things to demonstrate, the various overseers as well as the public do not have access to the information that even the current rules assert they should have. That is how I can state with certainty that we are not having that vital debate: We do not have the means to have that debate with any kind of authority; therefore, no matter how much we discuss these issues, we are not having that debate.
I don’t have to know everything about NSA surveillance activities. But I want my elected representatives to know, or at least have to power to find out. And I sure as hell want the court established to keep these inherently (and perhaps necessarily) dangerous activities under scrutiny and control.
A week ago the president endorsed legislation designed to make the FISC more responsive to privacy concerns. This legislation should be expanded to give the court itself the tools it needs to supervise NSA activities, and to give Congress the ability to see that it does its job.
Even those who think the legitimate role of the NSA’s surveillance program in counter-terrorism operations is larger than I suspect it is should acknowledge that we can’t have a super-agency operating not only in secret but beyond oversight. It’s time to rein it in.
