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Talking about secrecy

The White House, Congress and the public need to debate how to balance privacy and security.

September 10, 2007

This nation is overdue for a serious conversation about how to balance liberty and security -- a conversation that must include not only the Bush administration and a heretofore compliant Congress but the public as well. Citizens shouldn't have to guess about how much privacy they are sacrificing in the war on terrorism.

Congress will deal with this dilemma on several fronts in the coming months. It must enact permanent legislation to replace this summer's temporary "fix" in the Foreign Intelligence Surveillance Act. It will take a new look at USA Patriot Act provisions -- declared unconstitutional last week by a federal judge -- that allow the FBI to obtain telephone and business records with "national security letters" that don't require a judge's approval and swear some recipients to secrecy. Finally, Senate confirmation hearings for a new attorney general will require the nominee to say whether he or she shares Alberto R. Gonzales' expansive view of presidential power.

Overarching these issues is the administration's attempt to rule off-limits a discussion of what it actually has been doing and why.

President Bush acknowledged that the government was eavesdropping on Americans thought to be in contact with foreign terrorists -- without the approval of the FISA court -- only after the New York Times reported the existence of what came to be called the Terrorist Surveillance Program. Even then, it was unclear whether the program included data mining of telephone and e-mail records as well as eavesdropping.

Eventually, Bush agreed to have the FISA court oversee the program, but the White House and Director of National Intelligence J. Michael McConnell pressed for a FISA fix after the court ruled that some surveillance operations were illegal. Precisely what the court said hasn't been made public, and the administration is opposing release of its orders. That's consistent with the administration's long-standing position that the less said about surveillance operations, the better.

Except, of course, when it lifts the veil of secrecy for its own reasons. Last month, McConnell told the El Paso Times that the FISA court ruling involved so-called foreign-to-foreign communications routed through the U.S. He also told the newspaper that fewer than 100 people in the United States were under surveillance by the National Security Agency at any time, compared with thousands overseas, and that telecommunications companies had cooperated in surveillance.

Loose lips may sink ships, but needlessly vague information about surveillance activities submerges facts that should be part of the debate in Congress and the country about the trade-off between privacy and safety.

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