Hard experience proves we need protection against those who seek to harm us. Even longer experience shows we must be vigilant to maintain Constitutional protections like the Fourth Amendment ban on unreasonable search and seizure. It makes sense to be secretive about the inner workings of the Foreign Intelligence Surveillance Act so as not to forewarn those with malign intent. But the Snowden leaks undoubtedly have already prompted them to change how they communicate. It's too late to shut that barn door. As a result, the National Security Agency (NSA) will probably feel greater urgency to seek more search warrants to mine the vast material already accumulated.
Foreign Intelligence Surveillance Act Involves Communications to and from the U.S. Although named the Foreign Intelligence Surveillance Act, we now know that it focuses much attention on electronic and telephone messaging to and from the United States. Of course, NSA must concentrate on gathering information. That inevitably requires making countless decisions that balance such needs with the preservation of our basic values. Surveillance is time consuming, expensive and requires prodigious effort. That inevitably involves temptations to cut corners due to fatigue, zeal, laziness, impatience, hunches, a propensity to guess, sometimes affected by the common belief in the purity of one's own motives, among other human frailties.
FISA Court Vetting Inadequate to Protect Constitutional Protections NSA seeks to allay concerns about privacy and fairness by declaring that interceptions have been vetted and authorized by FISA judges. Some find that less than reassuring because the FISA courts operate in secret, receive application of unknown specificity, and issue orders that are carried out in secrect. Nor do some find it reassuring that, as New York Times columnist Gail Collins reports, in a recent year, of 1,856 search warrants sought, the FISA courts granted 1,856. That can bespeak fabulous observance of appropriate standards or rubber stamping.
Absence of Checks and Balances Requires a Substitute Most disturbing is the absence of our traditional checks and balances. Secrecy prevents the medi from their usual role of riding herd on government. Limitations on Congressional oversight largely insulate NSA and FISA from the usual ways appropriate committees keep tabs on agency activities. Hearings are rare and conducted in secret. Most importantly, NSA and FISA activities lack the salutary workings of our traditional adversarial processes in which parties with a stake are informed and have the opportunity to raise issues, including the opportunity to present competing proofs and arguments to an impartial decider. In the absence of those elements, fairness and the reliability of decisions require some appropriate substitute. NSA would surely respond that every official with decisional responsibility is charged with weighing evidence and arguments. However,we have long been appropriately allergic to officials empowered to act as investigator, prosecutor, judge and jury. It is not enough that NSA and FISA officials are honest, conscientious, energetic and dedicated to democratic principles. It is only to be expected that within NSA each individual's assigned role promotes priorities, attitudes and other elements that can affect objectivity. An official charged with seeking search orders can hardly be expected to always think very long about constitutional objections to such applications. Under current arrangements, only the NSA the version of facts and policy that impel it to seek an order or a search warrant is presented to a FISA judge. When a judge hears only one side of a story, that side will usually prevail. Quite aside from fairness, we have the nagging question of reliability of decisions secretly sought and secretly made. We have disconcerting instances of mistaken identity from the secret rendition program. Such mistakes are not only tragic, they impair U.S. credibility around the world.
The FISA judges are selected from among federal judges nationwide. They bring no expertise for assessing what they hear. Judges ordinarily do not have staffs to investigate. This may well explain how 1,856 applications for search warrants produced 1,856 warrants.
Catholic Church Used Devil's Advocates To Provide Balanced Presntations We certainly must have secrecy for our intelligence operations. But that does not mean we can do no better than depending on the good faith (which I do not question) of officials wearing, in essence, different hats simultaneously. For several centuries the Catholic Church used "Devil's Advocates" to test the merits of nominees for sainthood. Also called "Promoters of the Faith," they were canon lawyers assigned the single task of challenging the representations and arguments made on behalf of each candidate. At the very least, such a procedure encourages care on the part of proponents. To make devil's advocacy work, the role be recognized as honorable and important.
Examples of Utility of Independent Officials We have some pertinent domestic examples. Since 1921, Congress has used the Government Accountability Agency (GAO - formerly the General Accounting Office) to probe the efficacy of government agencies. The GAO has an enviable reputation for dependable work and GAO service constitutes a valued entry on resumes. Since World War II, the federal government has made use of Inspectors General to conduct inquiries designed to keep agencies within their assigned bounds. We have successfully used officials to conduct investigations that are designed to be independent and, by and large, they have earned solid reputations for performing such roles with integrity and efficacy. So, we have experienced success with procedures that substitute to some extent for adversarial processes.
Advocates for gthe Bill of Rights the Bill of Rights And what we need are a group of NSA officials whose assignment is to serve the spirit of our Bill of Rights at every stage of NSA and FISA proceedings while fully understanding the importance of effective investigation. Anything less not only lacks fairness, it also lack reliability. Let's call them Independent Advocates or Public Advocates. Such officials will bolster the evaluation of the NSA/FISA procedures which many now distrust.
One key element of American exceptionalism is our dedication to the rule of law. It is a value that constitutes an inspirational force throughout the world. We owe it to ourselves to protect that heritage.