For Immediate Release
December 23, 2005
Contacts: Neil Tickner, 301 405 4622 or email@example.com
Without Civil Liberties Homeland Security Will Fail
Op-ed by Lee Strickland
CIA veteran and director of the UM Center for Information Policy
When the government's war on terror forgets our civil liberties, it does so at our peril, weakening our homeland security.
Consider the latest and unnecessary example: the directives allowing the National Security Agency to intercept the telephone and Internet communications of Americans without a court warrant. The day the news broke, the Senate blocked renewal of the USA Patriot Act -- a law the president says is essential to our security. Its long-term status remains in question. There's a pattern here.
This is not the first time since 9/11 that a disregard for civil liberties has generated congressional and citizen opposition to other security programs. CAPS II -- a plan to enhance airline security by prescreening passengers' records -- was terminated because civil liberties concerns by the public and Congress were not satisfied. Admiral Poindexter's Total Information Awareness Program -- a Department of Defense initiative to create an extensive, coordinated database -- suffered a similar fate.
The lesson is that logical security steps will fail if the public does not have faith that they will be run in a way that respects our core values and constitutional protections. The irony in this latest case is that the warrantless intercepts are truly unwarranted.
The president acknowledges that he has repeatedly authorized his national security personnel to act on their own when they wiretap and intercept communications by U.S. citizens, bypassing the secret Foreign Intelligence Surveillance Court set up by Congress in 1978. He asserts that he has the constitutional and statutory right to do this.
Presumably, the president has acted to make the war on terrorism more efficient by modifying Executive order 12333 that dates from the Reagan administration and was intended to remedy and prevent the violations of rights under President Nixon and FBI chief J. Edgar Hoover. That order, as well as the law creating the Foreign Intelligence Surveillance Court, establishes a framework for the conduct of intelligence activities inside and outside the United States.
This system has never been viewed by most intelligence experts and practitioners as an impediment to national security. The surveillance court has proven itself over the decades to be as responsive as it needs to be, allowing the government to begin intercepts immediately and then seek authorization retroactively within 72 hours.
If there is a problem of efficiency, it does not lie in the system set up to protect both our security and our Fourth Amendment rights against unwarranted search and seizure. Reportedly, the Justice Department has experienced a backlog in making filings to the court. This backlog numbers in the hundreds at most.
Perhaps the president's orders have been designed as an end run around this blockage. If so, the right approach -- the one that respects our fundamental civil liberties -- is to give Justice the additional resources it needs.
Instead we now have a very dangerous precedent. Something extreme is afoot that eats away at the Constitution's fundamental precept of a balance of powers between the three branches of government.
When the executive branch asserts a unilateral authority to act without transparency, without oversight and without the opportunity for redress, the real threat to our society becomes apparent as it did in the 1960s and early '70s. This is as pernicious as anything Richard Nixon did.
If Americans are in communication with terrorists or others that wish us ill, then the Foreign Intelligence Surveillance Court, perhaps with additional jurisdiction to reach government actions overseas, is more than capable of serving as the neutral magistrate that our founders deemed essential to a free society.
We don't need to shortchange our civil liberties to have a strong and vigorous homeland security. The opposite is true. Civil liberties are not an obstacle; they're a vital part of our strength. Government programs that ignore this will continue to poison the water for our legitimate national security needs.
Lee S. Strickland recently retired from the CIA after 30 years as an attorney, senior analyst and manger. He now directs the University of Maryland's Center for Information Policy.