In our opinion: Make the NSA accountable

Published: Sunday, Sept. 29 2013 12:00 a.m. MDT

A sign stands outside the National Security Administration (NSA) campus in Fort Meade, Md., Thursday, June 6, 2013. The Obama administration on Thursday defended the National Security Agency's need to collect telephone records of U.S. citizens, calling such information "a critical tool in protecting the nation from terrorist threats." (AP Photo/Patrick Semansky)

Associated Press

For decades, the intelligence body known as the National Security Agency thrived in such secrecy that it was jokingly referred to as "No Such Agency." NSA mathematicians and computer scientists cracked the computer codes used by the nation's enemies, allowing the United States to be prepared to combat real threats.

Advances in technology, changes to laws in the wake of the 9/11 terrorist attacks and a culture of unaccountability have turned the NSA from conducting foreign surveillance to systematically collecting information about Americans' private communications.

The agency has collected information about millions of Americans' telephone calls and e-mails; its top official has misled Congress about the extent of the NSA's domestic surveillance program; and its world-class cryptographers have deliberately weakened industry-standard algorithms used to protect financially sensitive information on the Internet. This undercuts global confidence in U.S. technologies and industry.

Now, the NSA's 1-million-square-foot data center in Bluffdale is ready to begin sucking up more Americans' data without warrant, and without probable cause. Utah's political representatives and its emerging technology sector need to step up and play an important role in this debate.

Nationally, the mood toward the NSA has changed. Where citizens were once inclined to defer to law enforcement or intelligence activity in the name of fighting terror, this summer's revelations have united Americans against the NSA.

A July 2013 Washington Post-ABC News Poll found that 77 percent of Republicans, 76 percent of independents and 70 percent of Democrats believe the NSA's surveillance intrudes upon American's privacy rights. Additionally, 52 percent of Republicans and 51 percent of Democrats say these intrusions were "not justified."

Yet the Obama administration and the NSA remain unbowed. At a Thursday public hearing on Capitol Hill, NSA Chief Gen. Keith Alexander said the agency wants to create a massive database through which it can rummage for evidence of criminal or terrorist activity.

"Is it the goal of the NSA to collect the phone records of all Americans?" asked Sen. Mark Udall, D-Colo.

"Yes, I believe it is in the nation's best interest to put all the phone records into a lockbox that we could search when the nation needs to do it," said Alexander.

For defenders of constitutional checks and balances, the Obama administration's stance is troubling because the NSA remains unaccountable to Congress or to adversary proceedings before a transparently independent judiciary. The only review of the agency's surveillance techniques are before the Foreign Intelligence Surveillance Court, a secret body of federal judges that hears arguments from only one side: the NSA.

This must change, and the vehicle for a proper legislative response is now squarely before Congress. On Wednesday, Sen. Ron Wyden, D-Ore., joined with Republican and Democratic colleagues (including Udall) to introduce the Intelligence Oversight and Surveillance Reform Act.

Among its provisions: prohibiting the bulk collection of records of Americans with no connection to terrorism; prohibiting warrantless searches of Americans' e-mails; creating a constitutional advocate to challenge the NSA in the Foreign Intelligence Surveillance Court;, and permitting a Supreme Court challenge that such surveillance violates the Fourth Amendment.

As Congress begins considering how to make the NSA accountable under law, some legislators may grant the agency greater deference in its intelligence and law enforcement missions.

But Americans cannot claim to be governed by law, and not to be governed by men, without this debate.

"You cannot have the constitutionality of our law interpreted in secret," said Sen. Rand Paul, R-Ky., a co-sponsor of the bill. "The idea of whether we are spying on Americans without warrant is a debate we should have in public."

We agree, and urge legislators to stand by the principles of a robust Fourth Amendment and an accountable constitutional government.

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