Here we go again. Four years ago, the New York Times reported that the National Security Agency (NSA) spied on Americans’ phone calls and e-mails without warrants, in violation of the Foreign Intelligence Surveillance Act. Instead of holding the administration accountable, Congress actually responded by loosening the law to enable more surveillance. Now, The Times reports that the NSA is violating the newer, more permissive surveillance restrictions- engaging in a “systemic” and “significant” collection of Americans’domestic communications. It gets worse.
The NSA didn’t just make a few random mistakes. It targeted “groups of Americans” for surveillance without the proper court authority. Then, remember the experts, lawyers, and civil libertarians who warned that unchecked spying invites political corruption? The article reports that the NSA tried to wiretap a member of Congress without a warrant. That plan went up the line, but was “ultimately blocked.” (Which member? Some reporters and citizens are already researching that question.) The NSA apparently targeted the member of Congress for making contact with a Middle East “extremist” who was under surveillance - a basis that would suggest many other attorneys, journalists and government officials could be similarly surveiled.
The Times reported this bombshell news on its front page, but under the odd headline, “Officials Say U.S. Wiretaps Exceeded Law.” The term “exceed” sounds more like an accomplishment than a crime. Wired Magazine was more direct: “NSA Broke New Eavesdropping Law.” And that is the core issue. What should happen when the government breaks the law?
The first answer from Congress, on Thursday, was to schedule hearings. Senate Intelligence Committee Chair Diane Feinstein announced that her committee would hold hearings to “get the facts” within the next month.
Congress must provide vigorous oversight, of course. It is clear, however, that the systematic abuse of surveillance powers will never befully exposed, understood, and rectified via sporadic news reports and piecemeal congressional review. An independent commission of inquiry, composed of respected experts and backed by subpoena power, would provide a much fuller, more comprehensive investigation of counterterrorism abuses, from surveillance to detention and torture. Here’s how the Brennan Center’s Frederick A.O. Schwarz, Jr. put it in recent testimony before the Senate Judiciary Committee:
A commission would shed much-needed light on exactly what our counter-terrorism policies have been, including information that even some members of Congress still do not have. To the extent any policies departed from the rule of law, the commission would examine the process by which these policies came into being, including who made the key decisions and whom they consulted-or did not consult. It would go beyond the symptoms-i.e., the policies themselves-and look for the root causes. Where appropriate, it would examine the effectiveness of the policies, and it would assess their impact on our national security and foreign relations. Based on what it learned, it would make informed recommendations about the reforms that may be necessary in order to ensure that our counter-terrorism policies respect the law and keep us safe.
As Congress, the Obama administration, and the public consider this wave of revelations about government misconduct, from surveillance disclosures to the newly released memoranda on interrogation techniques, the need for such an independent review is clearer and more urgent than ever.