Reining in

September 12, 2007

The dangers of allowing the federal government to secretly peek into the private lives of Americans were exposed and briefly checked on multiple fronts last week. But Congress has much more to do.

Two separate federal courts rejected the Bush administration's broad claims of the need for secrecy in pursuing its snooping, in one case striking down as unconstitutional portions of the infamous Patriot Act. And on Capitol Hill, a House committee moved to delay the Oct. 1 launch of a Bush administration program to turn spy satellites on domestic targets for the first time - after Department of Homeland Security officials argued in vain that no outside oversight was necessary to protect Americans' privacy.

Meanwhile, a Justice Department auditor revealed that the government's watch list of potential terrorists used to screen 270 million travelers a month is so riddled with errors that nearly half the initial name matches prove worthless, resulting in the likely escape of terrorists but the detention of innocent citizens.

The message here couldn't be more clear: Executive agencies acting alone without court review or outside oversight inevitably overstep their constitutional grounds, and more than likely make a hash of things.

Civil liberties groups working through the courts and, more recently, Democrats asserting their new power in Congress are trying to rebalance the trade-off between privacy and security, which since Sept. 11, 2001, has been weighted far too heavily in favor of tighter security but often hasn't made the nation any safer.

A classic example is offered by the National Security Letters authorized by panic-struck lawmakers in the October 2001 Patriot Act, which allow the FBI to demand private information about Americans without court approval, and to ban those receiving the letters from informing the target citizen.

A Justice Department audit of how the FBI used those letters between 2003 and 2005 found the process rife with errors, in which inappropriate data were collected and stored, often without any justification. The FBI also conducted much broader searches than originally described to seek information beyond an individual suspect to include records from the suspect's associates.

That portion of the Patriot Act was struck down last week by a federal court in New York, largely because the gag order prevents any meaningful judicial review of an individual case. In such cases involving classified information, the government asserts citizens have no recourse but to "trust us."

All Americans should be grateful that the Constitution says something quite different. No claims of greater safety from foreign attack can justify the surrender of basic rights that underpin the society everyone claims to be trying to protect.

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