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Edward Snowden

Edward Snowden

., The Guardian via AP

KEY QUESTIONS


“Based on what was reported, [the NSA] was coloring inside the lines of the statutes. But it raises the questions: ‘Are they good guidelines?’  ‘And are they constitutional?’ ”


-WILLIAM McGEVERAN, associate professor at University of Minnesota Law School

NSA scandal: National security vs. individual privacy

  • Article by: Editorial Board
  • Star Tribune
  • June 10, 2013 - 7:09 PM

Addressing last week’s startling revelations about surveillance practices by the National Security Agency (NSA), President Obama said, “It’s important to understand that you can’t have 100 percent security and then have 100 percent privacy and zero inconvenience — we’re going to have to make some choices as a society.”

That is a pure, 100 percent straw-man argument. No reasonable American expects either perfect safety or untrammeled privacy.

But the president is right about confronting choices. What the nation needs now, and has a right to expect, is a more open, transparent and inclusive debate about the tradeoffs between security and civil liberties.

To date, the discussion has consisted of a closed feedback loop among the president, intelligence agencies, Congress and the judiciary. What’s been missing is an informed citizenry.

Many are suddenly more informed, thanks to the deluge of leaks seemingly emanating from Edward Snowden, a 29-year-old former CIA employee. His revelations to the British Guardian newspaper about the “metadata” methods the NSA uses to track electronic communications displays how rapid transformations in technology may have greatly outpaced the original legal framework that governs the NSA.

Defenders of the sweeping surveillance practices point out that they are essential tools to identify potential threats. It is only when potential threats are found that more traditional, individualized methods of investigation are employed. Indeed, some argue that the metadata method reduces the need for invasive probes.

That may be the case. But it’s difficult to be sure, since the program is so secretive. Secrecy most likely enhances the effectiveness of the surveillance and may better protect citizens from danger. But excessive secrecy is a danger in and of itself in a democracy. So now is the time to reopen this vital national debate.

Balance is the key. “The Constitution is not a suicide pact,” in the famous words of Supreme Court Justice Robert Jackson — it is not designed to prevent the nation from defending itself. But neither are constitutional safeguards against government overreach merely a bother to be privately swept aside. Just because Congress has been “briefed” and special courts have approved the administration’s approach doesn’t mean the NSA program is the right direction for the country to take.

Discerning which direction is the right one isn’t easy, despite the certitude expressed by some. The threats facing the United States are real. The country cannot afford simply to play defense; it must go on the offense against those who intend us harm. Electronic surveillance can be a crucial tool, which explains the robust bipartisan defense of the NSA by members of Congress from both houses, the president, and many in the national security establishment.

And it’s important to note that in the same way government officials are now being criticized for overreach, they have previously been criticized for underreacting to traceable threats, such as the brothers allegedly responsible for the Boston Marathon bombings.

There are no easy answers, and politicizing the issues won’t help. The NSA surveillance is not the latest “Obama scandal.” As on so many national security issues, Obama’s course has been strikingly consistent with President George W. Bush’s (albeit with more advanced technology at his disposal). Those trying to pile on the president may score quick political points, but they’re missing the real point: The NSA program exists because of widespread Washington acquiescence.

Whether it should exist is now the question. The Obama administration signaled that it “welcomed” the debate. We do, too. Because what we don’t welcome is a sweeping, secretive surveillance regime that relies on elected officials saying, in effect, “trust us.”

There may not be clear evidence that Obama, or Bush, were unworthy of that kind of trust. But America, like any nation, is always only an election away from inadvertently choosing leaders with darker motives and more ruthless ideologies. It’s wise to clarify boundaries. America’s founders knew that, and we dare not forget it.

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