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Edward J. Black Headshot

Secrecy, Democracy and the NSA

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Over the past few weeks, as we have all been digesting the flurry of leaks coming out about the NSA's data collection practices, I've been thinking of how this decision may have played out amongst the people within the administration and Congress responsible for our national security, but also for international relations, civil liberties, and the health of our economy. The fact is that with a highly classified program like this, the national security community will always have the advantage in any closed discussions of need, legitimacy, and balancing. After all, they are the only ones who are allowed to have access to some of the relevant information. But the closed nature of the process also deprives decision makers of important information and insights that need articulation and consideration.

It should go without saying that the vast majority of the people working in the federal bureaucracy are decent folks who strongly believe in what they are doing, and who have no intention of abusing the powers they are seeking. The analysts within the NSA looking through personal data for a living have next to no interest in spending time snooping on innocent Americans. They believe they are keeping Americans safe, and are searching for the most effective tools with which to do so. The leadership of the NSA, FBI, and other intelligence agencies understandably vigorously advocate for those tools within any administration, just as the leaders of the Commerce Department or the State Department do when putting forward their ideas.

A democracy is founded on the principle of zealous advocacy and public debate by the full range of affected interests, both within the polity at large and (at least in the American system) between the interests represented within the government by Congress and the various independent and executive agencies. Normally, that disagreement, that back and forth, allows us all to arrive at a balanced policy that takes into account, as far as is possible, all of the interests surrounding a question. But the strict secrecy surrounding the operations of our surveillance apparatus upends that well-worn model.

When the time comes to discuss the implementation of some new surveillance project in the name of national security, everyone else in the debate is at a distinct disadvantage. Those zealously advocating for increased spying powers -- because that's what they believe is necessary to achieve their specific aspect of protecting the nation -- get relatively little push back from people on the other side of the equation, because those people are by and large not allowed to know about the proposal. This is a shame because there are aspects other than national security that need to be seriously considered. (I know that there are people all over government with security clearances who could provide alternate viewpoints but they are relatively few and far between compared to those within the national security establishment).

Thus we end up with a set of runaway surveillance programs and an administration dedicated to protecting them. It seems clear at this point that these programs were instituted and operated at the same time that the Commerce Department was advocating around the world for people to use American cloud services, and while the State Department was placing an enormous focus on Internet freedom in its speeches and actions abroad.

The actions of the NSA have served to undermine all of those efforts, that's true, but they have also exposed the fact that even the rest of government and knowledgeable elements of the public and private sectors did not have sufficient opportunity to truly push back against the creation and structure of these programs.

Until we pull back the veil of secrecy covering our nation's surveillance programs, there can be no chance of having the proper public conversation that their import clearly calls for. At a minimum, the secret opinions of the Foreign Intelligence Surveillance Court should be made as public as possible, and online services should be allowed to report in aggregate the number of foreign intelligence demands they receive. We call on the government to open up about the actions of the NSA, insofar as would not truly harm national security, so that we can finally start the long-overdue conversation about this program that affects us all.

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