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Sunday, November 19, 2017

“What we have found in the history of our country is that you can’t trust the executive,” Royce Lamberth, the presiding judge of the Foreign Intelligence Surveillance Court from 1995 to 2002, told the American Library Association in 2007.

“You can fight the war and lose everything if you have no civil liberties left when you get through fighting,” Lamberth said. “The executive has to fight and win the war at all costs. But judges understand the war has to be fought, but it can’t be at all costs.”

By 2008, Congress had expanded the powers of the NSA under the PATRIOT Act and the Foreign Intelligence Surveillance Act — in secret. The five-year statute had to be renewed this spring. That brings us to our present impasse.

Congress says the provisions of the expanded surveillance laws are too secret to withstand public debate. At least eight senators, including Ron Wyden, an Oregon Democrat and long-standing Intelligence Committee member, clearly believe something is rotten in the state of surveillance. But they can’t say what. It’s too secret.

Wyden asked the director of national intelligence, James Clapper, at a hearing two months ago: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

“No, sir,” Clapper said. “Not wittingly.” That answer looks false.

You have to read between the lines of the congressional record to see where the problems in the laws may lie. My guess is that while the NSA conducts surveillance on foreigners overseas — that’s totally legal — it is in the process gathering intelligence on people in the U.S. without a warrant. That might be totally illegal. Let us see what the Foreign Intelligence Surveillance Court has to say about it.

Congress continues to enact laws in secret. President Barack Obama’s espionage chiefs are compelled to contort the truth in public. Federal courts seem incapable of handling secret intelligence issues in open trials. They have rejected lawsuits by the American Civil Liberties Union against Section 215 of the PATRIOT Act, saying the plaintiffs couldn’t prove they were spied on, and so had no standing to sue. Guess which venerable group is a customer of Verizon Business Network Services?

So we need to know what the secret judges think. The U.S. has the unique challenge of trying to run secret intelligence in an open democracy. It has to do so under the law.

(Tim Weiner, a former national security correspondent for The New York Times, is the author, most recently, of Enemies: A History of the FBI.)

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