Tuesday, March 18, 2014

Secrecy and Trust in Surveilled Times

In the wake of Pearl Harbor, former Secretary of State, Henry Stimson declared "Gentlemen do not read each other's mail," when asked about his decision to close the State Department's code-breaking office in 1929. The US was at peace until 1941, but active intelligence gathering before that December 7th might have thwarted Japan's infamous surprise attack.

Espionage is a preventative measure, seeking to catch those who would do us harm before triggers are pulled and civilians or their nation's interests are hurt. As such, spying should remain secret so as to make it effective. Snowden, whatever his intent, is exposing and wounding the very agencies that seek out threats from those who target our embassies overseas and our public spaces at home.

We live in a Republic governed by a constitution written to preserve essential liberties, such as freedom from unreasonable search and seizure. We are still discovering how that 18th century language applies to 21st century methods and the unprecedented surveillance made possible by modern technology. Our Republic places that exploration in the hands of our elected representatives, the courts, and the bureaucracy of the executive branch.

Abuses of power, corruption, individual or systemic abuses deserve to be exposed, but it should be done in a manner to minimize the damage to legitimate practices—approved by Congress, overseen by courts, and carefully calibrated by cadres of intelligent intelligence lawyers. I don't think Snowden’s leaks meet that standard—for all the good that some of his revelations may do.

We as citizens shouldn’t expect or hope to know all that is done in our name. Some element of trust is involved in governance, and when that trust is violated through illegal behavior it needs to be curtailed and the government must hold itself and its agents accountable. In turn, voters in a functioning republic hold their representatives accountable for impropriety or failure. The United States doesn’t use public referenda and breaking-news popular opinion to run its intelligence agencies—one hopes.

It is clear that the NSA stretched its authority, made errors, and didn’t always appropriately manage the power that it accrued. Questions must be asked: about NSA’s relationship with the FISA court, about the merits and value of metadata collection, about the security clearance system and contractors’ participation in our intelligence bureaucracy, about Director of National Intelligence  James Clapper’s congressional testimony (his general counsel’s perspective illustrates how context matters in considering allegations). The investigations to answer these questions don’t require or excuse the exposure of the methods and sources of our intelligence successes.

We don’t live in a world of gentlemen, and Snowden’s leaks don’t show America at its purest. But his disclosures haven’t revealed the kind of lawbreaking uncovered in Hoover’s FBI; they haven’t matched the illegal executive actions of Iran-Contra; they haven’t threatened President Obama with impeachment or the courts with a constitutional crisis. Unless or until abuses of that caliber emerge from Snowden’s well-stocked laptops, our government should focus on cleaning up intelligence practices to protect against breaches of conduct where they exist and begin restoring secrecy to our nation’s antennae.

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