Winnipeg Free Press - PRINT EDITION

Power exercised in secret is most easily abused

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The disclosure of the U.S. federal government's hugely expansive monitoring of phone calls and online communications as part of its fight against terror came as a surprise even to people who pay attention to these things. It's amazing, in fact, that any program so large and potentially controversial could remain secret for seven years.

The revelation is also a sharp reminder of how much the American public doesn't know about what the government is doing in its efforts to protect the lives of its people. As in every war, a lot of what is done has been kept secret.

That's one reason it's hard to assess the wisdom of these surveillance efforts. We don't know what, if any, plots they have foiled. We don't know how tough the court that approved the programs was in scrutinizing them. We don't know if the congressional intelligence committees have forced changes. We don't know if the information has ever been misused.

This approach, significantly, won the approval of two presidents despite their very different attitudes about national security and civil liberties. It also has been disclosed to and presumably approved by the congressional intelligence committees. Authorization had to come from the Foreign Intelligence Surveillance Act court. The consensus among those who know the most about the workings of the program argues for giving it the benefit of the doubt.

The endeavour appears to be perfectly legal under a provision of the Patriot Act that lets the government, with the FISA court's permission, get all sorts of records. But when that law was passed, even opponents didn't contemplate that the records requests could be so all-encompassing as these.

The alleged invasion of privacy is not particularly alarming on its face. When it vacuums up the connecting phone numbers, time and duration (but not the content) of virtually every phone call, NSA is not about to look at each one. It's watching for suspicious patterns. Only when it spots one does it use a wiretap to listen in -- and then only after it gets additional authorization from the FISA court.

Some new restrictions might be in order. If the government is looking for, say, calls between the United States and terrorists in Pakistan or Yemen, why can't it simply demand records of calls to certain foreign countries? Is there no way to narrow the search to leave most Americans out of it?

In debates such as this, context can be critical. Had then-president George W. Bush publicly announced U.S. intel agencies would conduct such monitoring in the days after 9/11, there would have been little objection. But Obama has to defend it in the aftermath of allegations the Internal Revenue Service unfairly harassed conservative groups and the Justice Department abused journalists in its zeal to ferret out leakers.

Handled with scrupulous restraint and impartiality, the information the government gathers from this monitoring poses no threat to law-abiding citizens. But how do we know NSA isn't giving special attention to Tea Party groups? How do we know monitors aren't prying into emails between critics of U.S. drone attacks and their contacts abroad?

Any power granted to the government is subject to abuse -- and that goes double for powers exercised in secret. So the administration has an obligation to reveal as much information as it can about the program without compromising security.

Rep. Mike Rogers, R-Mich., chairman of the House intelligence committee, says the program played a role in foiling "at least one terrorist plot on American soil, possibly saving American lives." It would be helpful for the public to know if that is so. Also worth asking is why the monitoring failed to unearth another plot -- the Boston Marathon bombing.

One reason the government's efforts to stop terrorism may go too far is the FISA court operates in a non-adversarial fashion. The government asks for permission to get certain records or listen to certain conversations and the judges decide whether to go along -- as they almost always do. Congress could create an independent office of lawyers, analogous to public defenders, to oppose the government in this arena, thus assuring the court sees the whole picture.

The public needs similar clarity. The stakes are high here -- human lives and national security on one hand, individual privacy and democratic control on the other. Greater knowledge and a vigorous debate can only help in finding the right balance.

Republished from the Winnipeg Free Press print edition June 11, 2013 A7

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