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Flashpoint

September 29, 2013

FLASHPOINT: What Congress needs to do about the NSA

BLOOMINGTON — Washington is beginning to debate the proper extent of government eavesdropping powers in the wake of Edward Snowden’s revelations about the NSA. It’s hardly as robust a discussion as it should be, but it’s a desperately needed start.

The colossal effort to monitor Americans’ communications has been going on for at least seven years, under two presidents. It constitutes an expansion of government power without precedent in the modern era. Yet while some members of Congress were informed about it — and all had the opportunity to learn — none saw an urgent need for public discussion. This is astounding. It took the actions of a leaker to spur any real airing of the matter on Capitol Hill.

Even now, it seems unlikely that Congress will make significant policy changes. That’s because all the nation’s key actors and institutions appear to approve of the surveillance programs. By its silence, Congress clearly supported them. Presidents Bush and Obama backed them. The intelligence community, a powerful voice on national security issues, has resolutely defended them. The courts that are supposed to keep them in line with the Constitution have been deferential to national security authorities, raising a few questions from time to time, but in the end approving all but a handful of tens of thousands of data-gathering requests.

And the American people, by their lack of widespread outrage, have signaled that in this one case, at least, they believe the government can be trusted to keep us safe.

In short, Congress — the forum where issues of such national importance should be hashed out — missed its chance to lead a reasoned national debate over how extensive we want surveillance over Americans’ communications to be. It’s unlikely that genie can ever again be forced back into its bottle.

Yet even the director of national intelligence, James Clapper — who once denied point-blank to Congress that the government collects data on millions of Americans — now sees the need for some sort of change. “We can do with more oversight and give people more confidence in what we do,” he said in a mid-September speech.

Yes, indeed. Here’s the problem: Once given power, the government rarely yields it. So you have to think not only about its present use, but how it will be used a decade or even more from now. Even if you concede that the current administration and its intelligence leadership have been responsible stewards of the powers they’ve been given — and I don’t — that is no guarantee that the people who follow them, or the people who come after that, will be equally trustworthy.

This means that Congress has some challenging work ahead. It needs to restore the proper balance between effective intelligence-gathering and intrusion into Americans’ privacy. It needs to demand more thoroughgoing accountability from the intelligence community. It needs to exercise greater oversight and insist on more transparency, more information and more constraint on surveillance programs — defining what is truly relevant to an investigation, creating more stringent definitions of which communications are fair game, and finding ways to assure Americans that protecting their privacy and civil liberties need not mean the wholesale vacuuming-up of every domestic phone and email record in existence.

There is no place for the timidity Congress has shown so far on these issues.

Our system depends on a vigorous Congress. The administration argues that it can provide rigorous intelligence-gathering oversight, but it has yet to prove it can do so — and in our system of checks and balances, it’s not enough to have one branch of government overseeing itself. Congress, the courts, and the presidentially appointed Privacy and Civil Liberties Board all have to step up to their responsibilities.

Americans should demand action to strike a better balance between privacy and security. In the past, the congressional overseers of the intelligence community have been captivated, if not captured, by the people they’re supposed to be supervising. Same with the courts. And the administration has hardly been forthcoming. That means it’s up to the American people to insist that our leaders do their jobs. It’s no less true today than it was at our founding: the price of liberty is eternal vigilance.

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.

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