Congress is legislating in the dark

No meaningful debate
Since 9-11, it has been virtually impossible to have a meaningful debate in the United States about the effectiveness of electronic surveillance or the cost to privacy. The administration has turned to specialized laws, national security letters and other means that prevent public scrutiny.

The Foreign Intelligence Surveillance Act, a narrow law passed in 1978 to address the specific problem of Soviet spies in the United States, has become the primary legal basis for the administration’s domestic surveillance. FISA, unlike the original wiretap law, lacks many of the critical safeguards. Even the FISA court has expressed frustration about sloppy applications. And the public report is little more than a one-page fax simply announcing the number of warrants approved.

In 2002, for the first time, more warrants were issued under the Foreign Intelligence Surveillance Act than under the traditional wiretap law. The trend has continued. In 1995, there were 1,058 warrants issued under the traditional wiretap standard and 697 FISA warrants. By 2005 there were 1,773 traditional warrants, but more than 2,000 FISA warrants.

Beyond FISA, the administration has issued thousands of national security letters and undertaken wiretapping without any judicial oversight. It was such a program that a federal judge recently concluded violated federal law and the Constitution.

A wall around a shroud
Other surveillance programs, including the widely reported data-mining of telephone toll records, will not even be considered by some judges because the administration asserts a state secrets privilege, which is essentially putting a lead wall around a shroud of secrecy.

Under these circumstances, Congress might be excused for some frustration. Still, a proposal to leave the FISA Court, a secret tribunal that issues secret orders, with the ultimate decision over the president’s wiretap program is a bad idea. Lawmakers need to do the hard work of assessing the program and ensuring oversight. And part of oversight is making available to the public information about the scope of the government’s surveillance activities.

Surveillance and secrecy are a dangerous mix for democratic government. Without the means to assess the effectiveness of government investigations, all activities become equally tenable. Those that violate privacy and those that don’t. Those that keep the country safe and those that don’t.

The Congress that created the federal wiretap laws understood this. It will be interesting to see whether the Congress that is considering changes to those laws remembers that surveillance without oversight provides neither privacy nor security.

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