Serious Republican conservatives finally understand that we must rein in the NSA and correct the abuses which have been exposed by Edward Snowden and by news reporting ever since. These hawks — men like Senators Lindsay Graham (R-SC) and Jim Inhofe (R-Okla) — know that we need the NSA to continue to be effective in countering terrorism but that, to preserve that mandate in a democracy, it has to be restrained and reformed.
The answer is not new rules or restrictions. No policy can anticipate either the exigencies of what we must do to uncover terrorist plots that threaten us or, on the other hand, what invasions of privacy snooping analysts might figure out in their spare time.
What is needed is an effective check and balance to the security hawks who are trying to protect us and can get overly enthusiastic or intrusive in doing so. We need a Special Prosecutor for the Intelligence Community to police the NSA, the CIA, the DIA and other intelligence agencies.
The Prosecutor should be appointed by the two Chairmen of the Intelligence Committees in Congress and the two ranking members — not by the president or the executive branch. He should have the following powers:
• To be informed of all FISA court applications and to have standing to appear to support or contest the requests.
• He should have a sufficiently large staff and generous budget to handle his workload
• He should be able to empanel grand juries, compel testimony, bring indictments and launch criminal prosecutions.
• Provision should be made for intra-intelligence agency prosecutions akin to military trials or Internal Affairs Division proceedings in police departments where the records and testimony is secret as needed.
• He should be informed of every instance in which meta data is queried, e mails are read, or telephone call contents scrutinized and be able to request details as he wishes.
• He should have the power to discipline, fine, prosecute or demote intelligence and agency employees in cases of abuse of privacy rights.
We cannot anticipate what will be needed or not needed in intelligence work nor can we trust the system to reform or police itself. Only a special prosecutor with the power and mission of protecting our privacy while maintaining our intelligence counter-terrorist capacity can hope to achieve the right balance.
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