Published on TheHill.com on June 11, 2013
We all know that we need the best possible protection against terrorism and that increasing amounts of data must be collected by the government to make that happen. But we need only look at the Internal Revenue Service and the Justice Department to realize how extensive is the potential for abuse of this data, especially in an administration as corrupted, self-involved, self-righteous and partisan as this one.
So where’s the balance?
I propose a three-part plan to solve the problem:
1. Create an Internal Affairs Unit in the National Security Agency to investigate, pursue and prosecute misuse of data on Americans.
2. Strengthen penal code provisions relating to the misuse of these data.
3. Make Foreign Intelligence Surveillance Act (FISA) judges independent of the executive branch so they may provide true “check and balance” over the intelligence community.
These measures would restore confidence in the independence and integrity of NSA data gathering so the agency could continue and offer its protections against terrorism. We need the NSA to continue to be open for business, but we need to be sure none of the political abuses that have characterized this administration can creep into the effort.
So let’s take the proposals one by one:
1. An Internal Affairs Unit would essentially be a cross between an inspector general and a special prosecutor. Like the inspector general, the unit would be permanent and focused on one agency and master its detailed workings. But like a special prosecutor, the unit would have the power to subpoena and prosecute wrongdoing. Members of the unit might be appointed by the U.S. Circuit Court of Appeals for D.C. just as the special prosecutors were in the past, or by the chairmen and ranking members of the House and Senate Intelligence committees — but not by the president or any other executive branch official. It must have a huge staff; subpoena power; the ability to initiate investigations, impanel grand juries and bring criminal prosecutions. The office would operate like the internal affairs units of most major urban police departments, keeping the cops honest and pouncing when they screw up.
2. The penal laws must be revised to create specific crimes related to the misuse of NSA data. I have no problem with the agency collecting information with a broad brush. My problem is if they misuse it. We need to be able to send those who would do so to jail even without the cooperation, and over the opposition of, the president and NSA leadership.
3. Moreover, we need the FISA court to be a genuinely independent judicial oversight body. Its judges should be appointed by the D.C. Circuit or the Intelligence committees, not by the executive branch. The judges should rotate and none should serve longer than six years to prevent him becoming a captive of the bureaucracy. Prosecutions by the Internal Affairs Bureau would be brought before the FISA court, although criminal convictions must never be kept secret in our society.
It is a false choice to ask if we trust our government — particularly this administration — with this kind of power or if we want to denude ourselves of this tool in fighting and preventing terrorism. We need to limit the potential for abuse at the same time that we collect the information.
We must also beware of repeating the disastrous investigations of the 1970s run by Idaho Sen. Frank Church (D), which exposed the activities of the CIA.
So shocking were the results that the agency was disempowered, crippled. The result was 9/11. We must not expose ourselves either to terrorism or to the ravages of an out-of-control, all-powerful government.
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