Category: Uncategorized

By Emilia McManus

As Kate Martin pointed out in her Constitution Day address last week at the Clarke Forum, the dialogue about liberty and national security is as old as our country itself. Many of the actions taken by early presidents created precedents that paved the way for the national security debate we face today. Ms. Martin sketched a path through history to illustrate the development of this conversation. She began by describing the legal limits set out in the Constitution and by Congress to protect privacy, starting with the 4^th amendment and ending with the Foreign Intelligence Surveillance Act of 1978 (FISA). FISA is the current legislation that governs the NSA. Ms. Martin also discussed the Supreme Court’s role in expanding executive authority in the arena of foreign policy. In US v. Curtiss-Wright (1936), the court describes the executive branch as the sole conductor of international relations. Since then, it has been read as giving the President the authority to do whatever necessary to protect national security.

In his article “The Constitution and United States Foreign Policy: An Interpretation,” Walter LaFeber characterized the turn of the 20th century as a time of “imperial presidencies, weak congresses, and cautious courts” (LaFeber 696). This is not dissimilar to the position we find ourselves in today. Ms. Martin’s main point of contention with federal surveillance was not necessarily due to the threat it poses to our right to privacy, but rather that it was done clandestinely without the opportunity for public debate.

Foreign and domestic policy have always been linked. The United States faced a number of existential threats in its early years. During its undeclared Quasi-War with France in 1798, the Federalist-controlled Congress passed the Alien and Sedition Acts. Although it was intended to protect national security by mitigating the threat of French influence in Congress, it was decried as a “reign of witches” by Thomas Jefferson and seen as an attempt to suppress anti-Federalist voters (Herring 87). One of Ms. Martin’s chief concerns with the NSA is the threat it poses to both private and public dissent. The Seditious Libel Act was regarded as a similar threat. It parallels the discussion today in that it was a response to a very real threat. Ms. Martin was fairly excoriating with regards to the NSA programs. One of her critiques was that that although frequently there are more narrowly tailored potential responses to security threats, there is no mechanism in place to force the government to choose those options. However, while she described the purported mutual exclusivity of liberty and national security as a false dichotomy used as inflammatory rhetoric, she failed to provide alternate solutions or make a case in favor of the NSA as she purported to do at the outset of her talk.

In general, Ms. Martin’s talk provided a comprehensive overview of the development of the debate over privacy and national security. However, she could have done more to elaborate on how the changing global landscape necessitates new approaches to national security. She presented a convincing case against government surveillance but neglected to address measures the government could take to deal with terrorism that do not infringe upon the liberty of its citizens or damage the integrity of the democratic process.

“I must not fear. Fear is the mind-killer. Fear is the little-death that brings total obliteration. I will face my fear. I will permit it to pass over me and through me. And when it has gone past I will turn the inner eye to see its path. Where the fear has gone there will be nothing. Only I will remain.”

-Muad’Dib; Frank Herbert, Dune

By Austin Barrington

When Americans feel threatened, we react – we fight back. But what happens when we push too far, when we react too harshly? What happens when we, perceiving a threat, overcompensate and suddenly find ourselves offering threats of our own?

Kate Martin recently appeared at Dickinson College and gave an informational lecture on the Constitutionality of secret domestic surveillance by the U.S. government. Early in the speech, she stated that she did not want to argue conclusively for one side or another; rather, she wished to lay down an understanding of both the pros and the cons of NSA surveillance, leaving for us the difficult work of deciding what actually makes sense.

However, she did not flinch from throwing out open critiques of “government officials in this administration”, claiming that they are convinced they are operating legally and constitutionally; they are convinced that the current legal framework has reduced the risk of government abuse; they are convinced that civil libertarians don’t understand how NSA surveillance works (or that “we” don’t appreciate how useful the surveillance is in preventing terrorist attacks).

And then she said it: “We have built the potential for a police state.” That’s a scary thought – a real and tangible threat. But in order to clarify her vision of what the real threat is, Martin quoted Associate Justice Lewis F. Powell; “Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power, nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.”

Does this actually happen? Has the U.S. government ever actually threatened to become a police state and restrict our citizens’ rights to lawful dissent? George Herring argues that it has, in a chapter entitled “None Who Can Make Us Afraid”; in 1798, fearing a war with France, Congress passed “several vaguely worded and blatantly repressive Sedition Acts” (From Colony to Superpower, 87). These Sedition Acts allowed the U.S. government to imprison any citizens who published writings that even smelled of political dissent; and they were allowed to sunset in 1800.

Early American history aside, Martin herself claims that the government has undertaken two “massive abuses” of its powers in her adult life: once to target political dissent and to change the outcome of an election (referring perhaps to Nixon’s illegal surveillance measures); and then again to claim the right to act outside or even contrary to the law and to do so in secret (referring to President George W. Bush’s extralegal Terrorist Surveillance Program).

So what do we do? We are a people of movers and shakers, we are descendants of revolutionaries and are ourselves reactionaries – we fight back. But let us not react too strongly. As a humble undergraduate student, I advise all of us, myself included, to act with wisdom and discretion in responding to this potential threat. And let us not forget that it is just that, a Potential Threat.

That said, Kate Martin, a certified expert on the legal systems put in place to protect our civil liberties, expressed doubt on whether said legal systems are adequate to protect against a police state. However, she also mentioned, exposing a surprisingly Constructivist perspective, that she believed that the legal framework was not the deciding factor, but rather how well the Congress can function and who gets elected to office (I’m assuming she was emphasizing the Oval Office).

I agree with Ms. Martin on both of these points: no legal framework is perfect and I’m sure we can all agree that electing competent leadership is generally a good idea. I also agree with Justice Powell when he asserted that both public and private dissent are vital to sustaining our American society. But let us act (and react) without fear; let us instead show Prudence by suffering what evils we can in order to avoid, if possible, the abolition of those invaluable forms to which we are accustomed.

Image courtesy of the New Yorker

By Moyra Schauffler, ’15

The Constitution Day Address at the Clarke Forum for Contemporary Issues entitled, “Government Surveillance and the Bill of Rights”, given by Kate Martin of the Center for National Security Studies, focused on the history and constitutionality of government surveillance in the United States and what effect the surveillance has had on the American population. To begin the lecture, Martin linked the fear felt by the founding fathers, of European “surveillance” of their newly independent nation with modern-day surveillance of electronic communications and the apprehension created by scandals, such as the one involving Edward Snowden. Martin spent the majority of the address discussing the history of the Constitution’s Fourth Amendment and its application to contemporary government surveillance. The most persuasive aspects of the lecture were the discussions of fear felt by Americans both in the past and present regarding government surveillance, the Fourth Amendment, and how that change to the Constitution applies to security of the nation today.

The first connection Martin made between historical and modern surveillance referenced John Dickinson and his 1774 drafted petition, in the interest of the First Continental Congress, to King George III. Martin said the petition was meant to encourage the Crown to, “repeal various oppressive laws”, and to quote John Dickinson, “leave to lay our grievances before the throne”. Martin then went on to describe that this petition aimed to stop, in the words of Dickinson, “The officers of the customs” who were, “empowered to break open and enter houses without the authority of any civil magistrate founded on legal information.” By referencing John Dickinson, Martin not only appealed to the audience members directly connected with Dickinson College, but she also alluded to the fear of outside influence and surveillance that gripped the framers of the Constitution, much as it does people today.

Image courtesy of the National Archives

George Herring also describes this fear of foreign control within the borders of the new nation on page fifty-seven of his work From Colony to Superpower. In this section, Herring lists many of the threats and troubles faced by the Washington administration following the Revolutionary War. In general, the biggest issues confronting the new nation concerned foreign powers’ involvement in North America and the lack of a strong American military or navy to assert the new nation’s independence over its territory. By living through a period under colonization in which “officers” could enter houses without warrant and, after independence, facing European powers that aspired to see the new nation fail, for obvious reasons the founding fathers inserted an amendment into the Constitution that eliminated “unlawful searches and seizures” as a possibility for the American government.

The Fourth Amendment of the United States’ Constitution clearly states the unlawfulness of warrantless “searches and seizures”. By putting this Amendment into the context of the 18^th century and the American government’s fear of re-colonization by the British and outside influence coming from other European powers, like France and Spain, one can clearly see the historical fear that the framers of the Constitution had of unfettered government surveillance of the people. However, in terms of modern threats and the “need” for surveillance by the government to keep the country safe, the question of what constitutes “unreasonable searches and seizures” becomes more complex and nuanced in the 21st century.

Image courtesy of The New Yorker

Martin continued her lecture explaining that, as communication technology improved throughout the 20^th century, the National Security Agency (NSA) began carrying out secret “wiretaps”, or the monitoring of telephone calls, on American citizens within the borders of the United States. Wiretapping became a controversial topic in terms of civil liberties because those against the practice deemed it unconstitutional under the Fourth Amendment and those in favor argued that the wiretaps were necessary for national security purposes. Finally, the Supreme Court, who had abstained from making decisions on the constitutionality of wiretapping ruled in United States vs. United States District Court (1972)  that wiretaps were unconstitutional. This controversy only escalated as electronic communication technology skyrocketed towards the end of the 20^th and throughout the first decade of the 21^st century. In trying to determine the constitutionality of wiretapping and modern electronic communications, such as email and text messages, one has to assess contemporary threats to the nation.

Today, for the most part, Americans do not have to worry about soldiers entering their houses and seizing their possessions without warrant.  Instead, Americans must be apprehensive of government workers having the ability to monitor their communications with people both inside and outside American borders.  Now that Americans know agencies like the NSA have this capability, the question of “why?” arises.  Modern threats to the nation are overwhelmingly asymmetrical compared to 18th century threats.  Terrorist groups like Al Qaeda are a different kind of adversary of the United States than a sovereign nation such as Great Britain.  In assessing these menaces, we as a nation must decide whether these new kinds of threats are worth the increased potential of government surveillance on the American population.

Clearly, whether we should allow more surveillance or not, and perhaps a weakening of the Fourth Amendment, is something that needs to be transparently discussed at all levels of government and civil society.  As Kate Martin concluded the Constitution Day Address, she stated, “There are certainly real threats, the potential for abuse is, as Richard Clarke describes it, a potential for a police state.”  These words summed up Martin’s argument of the problems raised by government surveillance in regards of civil liberties and probed the listener to imagine how the framers of the constitution would address the apprehension and fear created by warrantless surveillance on the American population.

By Anthony Scioscia

On Wednesday, September 17, 2014, Kate Martin had the distinct honor to visit Dickinson College in order to give the annual Winfield C. Cook Constitution Day Address. Martin’s lecture was entitled “Government Surveillance and the Bill of Rights” and seemed to have the promise of a strong argument against the constitutionality of the NSA’s surveillance programs. Keeping in mind her background as a civil liberties lawyer, I found myself a tad disappointed that she choose to lay out her argument for and against the constitutionality of these programs. One of her most rousing points on which her speech was centered was her belief that we have yet to engage in the democratic debate necessary regarding the wide ranging surveillance capabilities of the NSA. She asserted that the American people need to ensure that these powers are used rightly against foreign threats and not domestically against American citizens. So can these security measures designed with the intent to keep us safe instead violate the liberties bestowed upon us by the first and fourth amendments of the constitution? The answer is, sadly, yes.

James Madison

No one knew better the tenuous balance between liberty and security that Martin references more then James Madison, the author of the Federalist papers and strong advocate for civil liberties. Madison, when speaking on the subject, has said “The means of defence agst. foreign danger, have been always the instruments of tyranny at home.” This notion has been further extenuated in our US diplomatic history class from the view of scholar Walter LaFeber, who has said that, “Nearly two centuries ago Madison worried that liberty at home might be lost because of danger, “real or pretended,” abroad.” (LaFeber, 717) Can this really be true? Has the government ever used a crisis before to take away my rights as a citizen? The answer again, is yes; history tells us so.

In the late 1790’s in the wake of the XYZ affair, Congress used the crisis with France and a level of public upheaval to push through many of their highly sought political policies. One such policy was the highly controversial Sedition Act which stated that anyone speaking to defame the government whose words were found to be untrue by a jury could be convicted of seditious libel. As chronicled by George C. Herring, “the Federalist passed several vaguely worded and blatantly repressive Sedition Acts that made it a federal crime to interfere with the operation of government or publish any “false, scandalous and malicious writings” against its officials.” (Herring, 87) Although this law only lasted three years, it was the first example of the government encroaching on the liberties of the American people for security reasons.

Fast forward to 1972–almost two hundred years later–when the Supreme Court made the decision on the landmark Keith case, in which the court decided that the warrentless wiretaps that the government was conducting for domestic security issues were unconstitutional. Phone calls were not even protected under the fourth amendment until 1968 and up to this point, the government used wiretaps to conduct surveillance as they saw fit on any domestic persons. In the decision of this case, Justice Powell wrote “history has documented that government has viewed with suspicion those who most fervently oppose it’s policies.” He goes on to point out that political dissent by the people should not be under an unchecked surveillance power. He concludes his statement with the belief that these surveillance powers should not stop the people from speaking in a negative manner about the government in a private conversation. These wiretaps raised the questions of who was really being targeted and for what purposes?

The Church and Pike committees were congressional efforts to analyze and report on intelligence agencies since the dawn of the Cold War. The conclusions of their findings were startling, as they unearthed a history of domestic spying. The scope of this spying ranged from surveillance on the civil rights activists, the Vietnam war protesters, and journalists. The government justified their actions by stating there was a threat of foreign influence with these domestic activities. This was the first evidence we have that the government was using surveillance to monitor political dissent.

FISA law

Where do we stand today in the aftermath of 9/11? With this historical context in mind, are we headed to a full blown police state where individual liberties are at a minimum? That is hard to say. It is likely that the mechanisms are in place for the creation of a police state under FISA law, which allows for the government to have access to public meta data through cell phone companies. Public meta data encompasses emails, call logs, duration of phone calls, and to whom they were placed as long as one end of the communication is centered abroad.

As we have reached a point in the 21st century where technology has progressed so far that the government has the surveillance capabilities to monitor every aspect of our lives. The only checks on stopping full blown domestic surveillance are the governments dissgression and the rule of law. It is up to the American people to decide if this so called increase in security is worth is worth the potential infringement upon individual liberties, that history and Madison explicitly warns us of.

By Courtney Wojcik

http://www.henry4school.fr/Sciences/big-brother.htm

Kate Martin’s Constitution Day Address at Dickinson College framed the persisting struggle for power between the executive and legislative branches through the lens of government surveillance. Her approach chronicled the loss of privacy brought by the executive’s unrestrained assumption of power and the largely unsuccessful checks employed by Congress. Martin claimed that this has led to the potential for the easy creation of a “police state” (Martin, Dickinson College Clark Forum). Martin presented a convincing case for the necessity of government transparency supported by historical analysis.

This debate stems from the opposing values outlined in the Constitution and the Bill of Rights. Article II of the Constitution stresses the importance of executive capabilities to protect the nation, primarily through the power to act as “commander in chief” (US Constitution, Article II). According to Martin, this clause gives the president the ability to hide actions under the guise of national defense and has led to the executive’s encroachment on public privacy.

In contrast, the Bill of Rights ensures “a reasonable expectation of privacy” (Martin, Dickinson College Clark Forum). Under the 4^th Amendment, citizens are protected from unreasonable searches and seizures of property, limiting the government’s power to lead investigations based on hearsay and unwarranted information. These two opposing ideals, both vital to liberty, have led to a constant struggle between the protection of privacy and national security.

The executive branch has historically usurped the power of privacy by over emphasizing the importance of national security. During the 1798 Quasi-War with France, Congress passed the Alien and Sedition Acts in an attempt to protect the government from “scandalous and malicious writing” (Herring, 87). George Herring, the author of From Colony to Superpower, asserts that although the Sedition Acts were a relatively liberal interpretation of libel laws, they were instated in the interests of national security at the expense of free speech.

This violation of natural rights is repeated throughout American history. For example, the 1936 US v. Curtiss-Wright Export Corp Supreme Court case reaffirmed the belief that secrecy of the executive may be highly necessary in international affairs (Martin, Dickinson College Clark Forum).

The most recent evidence of an invasion of privacy is the USA PATRIOT Act. Justified by the need for tightened national security after 9/11, the NSA was granted the authority to operate outside of FISA’s parameters. This is concerning because as technological capabilities have increased, the strength of restraints on government has decreased. Currently, NSA has the capacity to pick up all international communications, and most likely keeps records of domestic calls (Martin, Dickinson College Clark Forum).

Congress has attempted to barricade these violations through acts of law, and are periodically supported by the Supreme Court. The 1952 Youngstown Sheet & Tube Co. v. Sawyer case reaffirmed the legislative power of Congress in “both good and bad times” (Justice Hugo Black). This case established the principle that the president cannot overstep his boundaries even in times of war, and that his power is greatest when acting with Congressional support (Martin, Dickinson College Clark Forum).

The Church Committee, formed to investigate intelligence gathering after the Watergate Affair, was one of the first steps to reform. While they acknowledged the potential of foreign influence, they still called for structural changes to create a system of oversight. Although the Church Committee achieved is goal of increased government transparency, the Bush administration blamed their failure of detecting 9/11 on the very same results.

Furthermore, the Foreign Intelligence and Surveillance Act of 1978, which explicitly prohibited Article II powers in regards to domestic phone tapping, was amended to lessen its restraints. Under the 2008 version, individualized warrants are no longer necessary, and although US citizens cannot be directly targeted, wire tapping is permissible if they are linked to foreign influences in any way (Martin, Dickinson College Clark Forum).

The persistent assumption of power by the executive branch, despite obstacles presented by Congress and the Supreme Court, has created a precedent for Bill of Rights violations. Congress, through the power of the purse and legislative action, has the ability to stop aggressive executives. Until this issue is brought to public attention, however, we have no way of knowing that surveillance activities do not impede civil liberties. If government actions remain classified under national security, there is no way to protect against the loss of privacy. Without the ability to check this growing power, the United States is under the constant threat of developing into a police state.

James Madison

By John Morrow

Kate Martin spoke at Dickinson College last Wednesday about the history of U.S. government surveillance and its implications today.  At this event hosted by The Clarke Forum for Contemporary Issues, Ms. Martin sought to answer fundamental questions regarding the processes set up by the Constitution in deciding the legality of government surveillance – particularly on electronic communications.  While laying out the arguments for and against National Security Agency surveillance, Kate Martin examined the historical context of liberty and national security to develop a well-rounded perspective on this issue.

Every year The Clarke Forum invites a prominent public speaker to give a lecture to students in honor of Constitution Day.  I imagine they would have a difficult time finding somebody more qualified to speak on this issue than Kate Martin.  As the current director of the Center for National Security Studies in Washington D.C. Kate Martin is an expert on the preservation of civil liberties in the face of government interference.

A study of the Constitution’s influence on national security policy today, however, must acknowledge the circumstances that shaped its creation.  Kate Martin offered us that in her speech by citing two distinct problems arising from the Constitution that hinder clarity on law making today.  “When the Constitution was written,” Martin explains, “there were in some ways two restraints on the power of government.  One was the Constitution or the law and the other was the lack of a technological capacity of the government to listen on everybody’s communications all the time.”  Of course the founders of the Constitution and leading foreign policy experts of a young United States had no way of foreseeing cell phone calls and email chains as a threat to national security.  However, Kate Martin’s quote hints at a fundamental issue – the significant change in the meaning of national security and the resources accessible to the government over more than two centuries.

In 1792, James Madison claimed that “every word [of the U.S. Constitution]… decides a question between power and liberty.”  The power entrusted to the government through the constitution is meant to preserve liberty at home.  The question of how to preserve liberty could not be more different today than in 1792.  Coming off the heels of revolution, the United States of the late 18th century was mostly concerned with sovereignty.  Balancing expansionism, neutrality, and involvement with Europe, the U.S. was just finding its place in the world.  George Herring argues in his comprehensive study of U.S. foreign relations From Colony to Superpower that “if the United States could avoid war for a generation… the growth in population and resources combined with its favorable geographic location would enable it ‘in a just cause, to bid defiance to any power on earth’ ” (From Colony to Superpower, 56).  National Security and the preservation of liberty in the 1790’s is not quite the same as the email hackers and airplane hijackers we face in the 21st century.

With everything Kate Martin said and much that can be learned by studying U.S. diplomatic history it is only natural to want a conclusive answer on what the NSA is doing right and what it is doing wrong.  We live in an exciting time.  The world is moving, perhaps, faster now than it ever has.  Yet this is where it is necessary to be level headed.    In Martin’s words, this issue “is a question that our country hasn’t decided and that we all need to participate in thinking through how it should be decided.”  I believe, as Kate Martin does, that more and more information on this topic will be revealed in years to come.  It is necessary for us – whose interests are directly involved – to come to a conclusion over time together.

http://obrag.org/?p=3609

By Jordan Brossi

I was thrilled to have the pleasure to see Kate Martin, director for the Center for National Security Studies, discuss the burgeoning controversy of government surveillance at Dickinson College’s annual Constitution Day Address. Martin, an expert in the field of national security and civil liberties issues, discussed her take on our nation’s current surveillance dilemma. Martin spent the majority of the lecture delving into the history of surveillance in the United States. And, though Martin described her address at the outset as both a defense of and advocacy for government surveillance, I was disappointed that Martin gave short shrift to her defense of surveillance. Instead, she advocated a sharp curtailing of the National Security Agency’s intelligence gathering power, which eclipsed a discussion of the benefits of the program. In her critique, Martin emphasized the tenuous security environment that the NSA has created, with vast intelligence collection capabilities that could be used illegitimately to capture all communications. It was clear that Martin finds the NSA’s surveillance program unconstitutional.

Although Martin paid short shrift to a defense of the surveillance program, Martin’s description of the history of surveillance in the United States provided a necessary background to the lecture. Surveillance history provides many necessary precedents and parallels to current day surveillance programs and legislation. Youngstown Sheet & Tube Co. v. Sawyer (1952) for example declared that former President Truman’s seizure of steel mills was unconstitutional, for there was no Congressional authorization. Moreover, that President Truman could not use World War II as justification for seizing the mills. Parallel to our ‘war on terror’ or ‘fight against extremists,’ President Obama cannot allow the NSA to continue its intelligence gathering program because of  our interests in fighting terror threats overseas.

Moreover, as another negative consequence of the NSA program, Martin also posited that the surveillance program has built the potential for a police state in the United States. Our federal government is gathering metadata from our private telephone calls, emails, and internet searches, to catch citizens in the US who may be agents of a foreign entity. The program however is the opposite of what our Founding Farmers sought: to be free from the oppression and barbarism of the King of England. George C. Herring describes in his novel From Colony to Superpower the barbarities which Martin alludes to, which in the 1770s encompassed “closing off the trans-Appalachian region, enforcing long-standing trade restrictions, and taxing the Americans for their own defense” (From Colony to Superpower, 14). Barbarism in the late 18th century consisted of the King blocking trade routes and taxing the colonies for their own defense. And, barbarism in the 21st century consists of our government secretly wiretapping our calls. Centuries apart, we face barbarities as did our Founding Fathers.

The NSA’s surveillance program captures data from mostly unknowing, most likely unconsenting, Americans. However, the barbarity does not stop at an infringement upon our rights. Through FISA and consequent amendments, surveillance extends outside of our boundaries to international countries. Surveillance of calls placed from the US to an international country, or calls from an international country back to the US, are what the NSA hopes will expose foreign contacts who are agents of another country. However, we must ask ourselves if we are willing to give up some of our individual liberties to be protected from terror threats. Just as Martin argued, our terror threat may be shifting from enemies abroad to an enemy at home: our government. The NSA’s broad surveillance program has indeed built the potential for a police state. Our phones can be wiretapped, as can our emails and internet searches. Are we willing to be a little less secure in the hands of our own government to be a little more secure from terror groups? That is one question with two equally unacceptable answers.

By Sam Weisman

On September 17, Dickinson College welcomed Kate Martin, the president of the Center of National Security Studies, to deliver a Constitution Day address on the Bill of Rights and NSA surveillance. Her lecture discussed the relationship between liberty and security in the digital age. This timeless struggle has evolved dramatically over the course of American history but clear parallels can be drawn to threats facing the early nation. On September 11, 2001, terrorists affiliated with al-Qaeda hijacked commercial airliners, flying one into the Pentagon and another two into the World Trade Center. The horrific attacks slingshotted the United States into a new age of national security. In response, an ongoing military campaign war launched in Afghanistan and a global war on terror commenced. The conflict merged domestic and foreign relations in a way that continues to strain the relationship between security and liberty.Unlike conventional warfare, enemy combatants can blend seamlessly into civilian populations or be aided by US citizens on their mission to conduct acts of violence. When conventional means are not sufficient to secure the nation against an unconventional threat, civil liberties have been sacrificed. The most potentially dangerous effect of the NSA scandal is the declining system of checks and balances in the Foreign Intelligence Surveillance Courts (FISC).  Decisions concerning civil liberties must be limited and with adequate oversight.

In a democratic republic like our own, there should be few political surprises. Transparency and the system of checks and balances should remove the possibility for national shocks like the 2013 reveal of the collection of citizen metadata by the NSA. Many have condemned the program as an intolerable infringement on 4th Amendment rights. How have we gotten here? The problems with NSA surveillance come from the unchecked FISA courts.

Picture, if you will, a closed-doors, windowless court room. A panel of district court judges appointed by the Chief Justice of the Supreme Court receives a government request from an NSA representative. The Foreign Intelligence Surveillance Court (or FISC)  eagerly approves the vast majority of requests (rejecting only .0324%, or 11 out of  the 33,949 since 1979) without the consent of any other branch of government. The isolated judicial decision-making body has made the unquestioned growth of NSA power possible. In her address, Martin questioned this system, “How much of the decision making can legitimately be carried out in secret, consistent with the constitutional command that democracy requires an open government?” This question is central to the age-old debate between liberty and security.

http://www.cfr.org/intelligence/has-fisa-court-gone-too-far/p31095

The 1790’s were a time of similar homeland insecurity. The fledgling government was threatened by infiltration. The members of the early Congress had been bribed by French officials and rogue French agents ran amok in the country, inciting dissent against the government. This diffuse threat infiltrated the population and sought to influence upcoming elections. The government feared that the population would support a French invasion. To combat the issue without directly targeting France, the Federalist Congress passed the Alien and Sedition Acts in 1798. The Alien Acts allowed the unwarranted arrest and deportation of non-citizens suspected of aiding an enemy. The Sedition Act directly impinged upon the First Amendment liberties of the American people by making the “seditious libel” of the government punishable. This was loosely defined. Without oversight or an adequate system of checks and balances, the Alien Acts were used as a partisan tool against the Republican party while the Sedition Acts restricted individual liberties.

Although it may have a place in modern security, the processes behind NSA surveillance are in dire need of reform. The FISA courts require significant reform and the oversight of an outside party. Recent amendments to FISA have moved towards Congressional updates and greater transparency. The ACLU has petitioned to institute greater FISA regulation. NSA surveillance and other security measures may be necessary to national defense. However, open government is the only way to make sure these security measures don’t go too far. The Alien and Sedition Acts can provide a historical model for security policy gone too far without oversight.

https://www.aclu.org/national-security/fix-fisa-end-warrantless-wiretapping

Mid-September captures the division between security and liberty in the United States. The anniversary of the 9/11 tragedy has been represented annually with Patriot Day, a solemn occasion of remembrance. Thoughts will turn to our security as a nation: how can we ensure that this never happens again? Less than a week later, Constitution Day is met with discussions about civil liberties, past and present. The fragile balance between liberty and security must be handled openly and with appropriate oversight.