TCS Daily

We Need Domestic Spying...

By Arnold Kling - December 19, 2005 12:00 AM

"The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it. Intelligence officials involved in this activity also receive extensive training to ensure they perform their duties consistent with the letter and intent of the authorization."
-- President George W. Bush

President Bush is defending the practice of using the espionage capability of the National Security Agency to attempt to monitor communications of Americans who appear to have links to terrorist groups abroad. His claim is that there are sufficient procedures in place to prevent abuse. In my opinion, he is wrong. Because the Justice Department is part of the executive branch of government, its reviewers are not independent. Congressmen receiving briefings are not in a position to provide thorough, professional oversight. Instead, they are amateur auditors.

We need domestic spying. But that in turn means that we need independent, professional audits of our domestic security policies, procedures, and operations. That is a point that I stressed in The Constitution of Surveillance and in Surveillance after London.

What I am afraid we will see is a tug-of-war between those who place a greater priority on preventing terrorist attacks and those who place a greater priority on reining in the spying agencies. Instead, an independent agency responsible for auditing domestic intelligence could add a layer of protection against abuse while also identifying weaknesses and shortcomings in our intelligence system.

Without an independent audit agency, the oversight of domestic intelligence is going to be spotty and ineffective. There will be Congressional hearings now and then, the occasional official study (think of the 9/11 Commission), and other episodic checks in response to notable events or revelations. However, the issue of domestic spying is too important to be dealt with in such an irregular, incomplete fashion. Auditing our security apparatus needs to be a process, not an event.

As I envision it, an independent audit agency would be structured so that its leaders would not all belong to the same political party or be appointed by the same President. It would include strong civil libertarians as well as people with knowledge about strategic and tactical issues related to espionage.

Questions About NSA Spying

An auditor would have a number of questions to ask about spying by the NSA. What follows are just a sample of questions that occur to me.

  • In the future, a President could decide to adapt domestic spying for purposes other than preventing terrorism. Perhaps a future Administration will think that it is just as important to use domestic spying to fight the drug war or to track political opposition. How can we be sure that domestic spying is only being used to prevent terrorism?

  • Are there procedures in place to control and protect the use of data obtained by domestic espionage? How do we know that someone in NSA is not uncovering personal information about his neighbor?

  • Are we testing to make sure that domestic spying is generating actionable intelligence? Are conversations being interpreted and analyzed in real time, or are the communications intercepts being dumped, unprocessed, into a vault?

  • Are the procedures for selecting individuals to be spied upon effective? How are suspects identified? How are they prioritized? How do we know whether we are spying on too many people or too few people?

  • What are the procedures for taking people on and off the list of those under surveillance? Are the roles and responsibilities for managing this list clearly defined?

Perhaps some of these questions will be answered at Senate hearings on the program. However, they need to be asked on an ongoing basis. Moreover, I believe that a professional auditor would ask more and better questions than I can come up with, or that the harried Senate staff can formulate.

Nothing Against Amateurs

I have nothing against amateur auditors. Members of Congress, the press, and citizens' groups perform a valuable function when they question what the Administration is doing in the name of domestic security. We will always need critics, dissenters, and doubters who will challenge the effectiveness and Constitutionality of the intelligence-gathering process.

An independent, full-time agency dedicated to auditing the domestic security apparatus is not a substitute for the vigilance of amateur auditors. We will have to remain on guard. But amateur auditors are not sufficient. The latest flap over domestic intelligence serves to reinforce my belief that when it comes to auditing domestic surveillance, we need professionals working for an independent agency.

Arnold Kling is author of Learning Economics.

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