By Lee H. Hamilton
Every few days, we learn yet one more way in which government’s expanded surveillance powers intrude upon our privacy and civil liberties.
Last week, it was the revelation that spy agencies in the U.S. and Britain have been snagging personal data from the users of mobile phone apps. Before that came news that the NSA was tracking our social connections; that it was delving into our contact lists; that it was logging our telephone calls; and that it had figured out how to conduct surveillance on some 100,000 computers around the world. It appears the agency can do anything it wants when it comes to collecting information on pretty much anyone it wants.
We can take pride in this technological virtuosity, but it has propelled an expansion of government power unlike anything I’ve seen since I joined Congress 50 years ago. The NSA’s surveillance and monitoring abilities are unprecedented and seem unlimited. So we face the crucial question of how we can we prevent abuse of the capabilities the NSA has been given. Our challenge is to put into place a permanent system to oversee that power.
The agency gained its capabilities over the course of at least a decade with the full knowledge of some members of Congress and the judiciary, and of the White House. This is perplexing. At a time of rising public suspicion of government, did those in the know really believe no public policy debate was necessary?
The intelligence community has convinced two presidents, leading members of Congress, and a series of judges that our safety depends on its ability to discover plots against us by tracking connections among adversaries. Although in the end federal data collection programs will continue and not fundamentally change, a spirited public debate about these spying powers is now under way, covering the scope, legality, costs and benefits of the programs.
The White House argues that there are elaborate “checks and balances” within the executive branch to prevent abuses. That’s commendable but insufficient under a separation of powers system. Congress has been timid, and the court overseeing the NSA has granted almost every request the agency has made. There is a lack of evidence that Congress and the courts provided pushback on any of the intelligence community’s initiatives to expand its power — they have been reliable and relatively uncritical allies of the intelligence community.
I do not see how we get the balance between liberty and security right unless the courts and the full Congress — not just certain committee members — get all the information they need and step up to their constitutional responsibilities to check and balance executive power.
At a minimum, then, Congress and the courts should do the job our system counts on them to do, and commit to rigorous and sustained oversight and, in the case of Congress, to legislative action to refine the laws governing federal surveillance. Congress should clarify the Patriot Act so that this massive power is clearly delineated and is relevant to an investigation into potential acts of terror. The legal foundation that the government has used simply does not provide an adequate basis for the program.
Government should not be entitled secretly to get information on anyone whenever it wants without more transparency, more information, more debate, more oversight, and additional constraints.
So Congress needs to address a lot of questions. Can intrusions into the lives of Americans be minimized without harm to national security? Isn’t public debate about the powers of government less a danger than to allow surveillance powers to grow in secret? What should be done when agencies besides the NSA seek these powers to catch drug dealers, say, or nuclear proliferators? What rights do citizens have to the information collected about them? Are the NSA’s powers to infringe on Americans’ privacy proportionate to the threat we actually face?
Sorting through these questions will be arduous and is the work of many years. Yet the public policy issues they raise are of enormous magnitude. Getting the balance right between liberty and security is a daunting job, and now is the time for the Congress and the courts to exert leadership.
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.