Libertarians need to explain exactly what they want as they continue to lambaste the National Security Agency over its widespread snooping, the Wall Street Journal
said in an editorial Thursday.
As they urge more restraint, documents declassified by the agency indicate it may be overly stifled already, the paper claimed.
"What they [the documents] really show is that the surveillance bureaucracy may be doing too much to limit intelligence gathering that could save American lives," Journal editors write.
"Instead of the 'open, honest debate' that critics claim they want, the disclosures have merely prompted another furor about illegal domestic 'snooping,' if not spying." The anti-NSA crowd should say how they want to change the agency for an honest debate to occur, the editorial says.
"The latest cache of secret court opinions, white papers and reports to Congress concern surveillance programs that target foreigners believed to be overseas," it states.
"No constitutional rights shield the phone calls and e-mails of foreigners from U.S. spooks, and such global intelligence collection is the main reason the NSA exists. A threshold question for the politically aggrieved: is wiretapping al-Qaida and other enemies abroad now supposed to be forbidden?"
The rights for NSA spying come from the Constitution's provision of war powers to the presidents and Section 702 of the Foreign Intelligence Surveillance Act (FISA). The FISA court has oversight over the 702 programs and has approved almost all of them, the editorial says.
But critics latched on to an October 2011 ruling from the FISA court's then-chief Judge John Bates that a specific 702 collection technique was "in some respects, deficient on statutory and constitutional grounds."
The problem was that the NSA may have been accidentally intercepting up to 56,000 communications a year in which Americans were the senders and/or recipients, the editorial says.
"If that sounds like a lot, that's about 153 messages a day out of the 250 million Internet intercepts the NSA makes each year," Journal editors write.
"The nature of such messages is that they often only travel through . . . key nodes in packets, not as discrete items, so the NSA must inevitably collect broadly to obtain the valuable foreign intelligence it needs."
Bates acknowledges this fact and doesn't quibble with the scope of the NSA searches. But he decided that the NSA's techniques for discarding this "incidental" information violate the Fourth Amendment and the FISA statute, the editorial says.
But what troubles Journal editors is that "Bates behaves less like a member of the judiciary and more like an executive branch policy maker involved in an interagency dispute." His objections appear to be minor.
"But one danger is if one of his successors orders the NSA to, for example, dial down searches to catch fewer domestic messages but also less actionable foreign information," the editorial says.
"Instead of pretending FISA is a judicial exercise, it would be less corrupting to the judiciary and increase political accountability to cut the courts out of FISA."
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