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Editorial: Losses accompany gains in US government’s anti-terror surveillance

FILE - In this June 6, 2013 file photo National Security Agency plaques are seen at the compound at Fort Meade, Md. The NSA was founded in 1952 but only publicly acknowledged years later, which explains its nickname “No Such Agency.”

FILE - In this June 6, 2013 file photo National Security Agency plaques are seen at the compound at Fort Meade, Md. The NSA was founded in 1952 but only publicly acknowledged years later, which explains its nickname “No Such Agency.” Purchase photo reprints »

It is hard to know what to believe about the protective value of giving government access to records of our phone calls and Internet use. But we should all be concerned that this practice and this technology gives people in power the ability to know what citizens are saying to one another through words, still and moving pictures, sounds — virtually every way possible beyond whispers in the dark.

The government’s initial defense of its monitoring of millions if not billions of such communications, after it was revealed by a former National Security Agency contractor, was that it has helped foil terror plots.

But was it instrumental in doing that? Are there other ways to protect the United States that do not involve sacrificing privacy?

Secrecy enshrouds this whole business. That makes it impossible to know whether officials are keeping Big Brother at bay, as President Obama suggested in an interview with Charlie Rose of PBS, or whether they will now say anything to mollify the public but later act to erode the public’s right to free assembly without government intrusion.

What do we risk losing as a free society if we acquiesce to government review of private communications? The fact that it doesn’t appear to trouble most Americans isn’t reassuring.

Civil libertarians are rightly concerned, however, and the American Civil Liberties Union has brought suit against the government. Such challenges invoke the Fourth Amendment, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That amendment, written after a new nation broke free from oppression, doesn’t say unreasonable searches and seizures are acceptable when times are tough. It took the long view that government should never hold such power over the governed.

FBI director Robert S. Mueller III recently said access to private communications could have helped prevent the terrorist attacks of Sept. 11, 2001. After the attacks, the U.S. government moved quickly to pass the Patriot Act, which extended government’s reach into private information. The Bush administration extended it further through the “warrantless wiretapping” program exposed by the New York Times in 2005. President Bush and his attorney general, Alberto Gonzalez, held that they needed no approval from the Foreign Intelligence Surveillance Court to intercept foreign communications bound for the U.S. Under pressure, the Bush team abandoned that wiretapping in 2007 and instead secured, through Congress, the Protect America Act, which gave the administration the right to conduct such surveillance for a year. The FISA Amendment Act in 2008 gave it new life, and then last December that power was reauthorized by President Obama for five years.

As the president has emphasized, the surveillance targets non-citizens. Approval to go beyond conducting pattern analysis of the “metadata” of phone calls (their origin, location, length, etc.) requires a green light from a 35-year-old federal court.

However, experience shows this court does not say no and it does not reveal its deliberations, a situation that led New Mexico Sen. Tom Udall to observe, “It’s very, very difficult I think for us to have a transparent debate about secret programs approved by a secret court issuing secret court orders based on secret interpretations of the law.”

Edward Snowden’s disclosures about the spying were not news to lawmakers in Congress.

Sen. Dianne Feinstein, chairwoman of the Senate Intelligence Committee, was among the first to call Snowden a traitor. Others see him as a whistleblower. Three former NSA employees told USA Today this month they believe Snowden was justified in exposing what they, too, see as violations of fundamental constitutional rights.

Even Feinstein is now backing calls for congressional hearings into how the National Security Agency gathers information on the American people.

We agree with Oregon Sen. Ron Wyden that the White House should provide more information on the extent to which our communications have been monitored.

It makes sense that lawmakers are already drafting legislation to sharply limit the access private contractors like Snowden have to the most sensitive intelligence. As of last October, 483,263 contractors held top secret clearances.

It is important to remember that Americans have been lied to by government officials of both major parties who believe citizens can’t be trusted to know what’s in their own best interests. The FISA court was set up to protect Americans from governmental abuse, but this system needs further safeguards, including more rigorous congressional review and perhaps oversight from a board of carefully vetted citizens.

Last week, a sympathetic House committee provided a forum that enabled the NSA’s director, Army Gen. Keith Alexander, to selectively lift the veil on the surveillance, asserting it helped stop a plot to bomb the New York Stock Exchange. Alexander told the committee that Snowden’s leaks caused “irreversible and significant damage to this nation.”

We as a nation have nothing to fear but fear itself, President Franklin D. Roosevelt said in his first inaugural address in 1933, speaking of that time’s economic terror. Perhaps today we should also fear what government prescribes as right and safe for a fearful people.

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