Intelligence gathering a must but so is oversight

Just about everybody believes that, as Americans, we have a right to privacy and protection from government intrusion on that right.

Just about everybody believes the government should do everything in its power to protect us from terrorist threats.

Recently some people have argued that we have to choose between one or the other, that we can’t continue to hold both of those beliefs. I think we can, but only within the limits we have always lived with.

In the Fourth Amendment, the Bill of Rights guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Read the amendment carefully and you realize that the right to privacy was guaranteed only to United States citizens (“the people”) and that “upon probable cause” it could be violated if done through proper legal channels.

Throughout our history, when a judge has issued a warrant, government officials –local, state or federal –have been allowed to invade your privacy. Anyone who watches a legal thriller on TV knows that before searching someone’s home, business, car, etc. the police must first ask a judge for permission. If she doesn’t think they have a compelling reason to do so, she says no.

Exactly the same rules apply to national security cases. A government agency must obtain a warrant from a federal judge, one of the 11 sitting on the Foreign Intelligence Surveillance Court, before it can “search and seize.” The identity of these judges is no secret; every one of them has been publicly nominated by the president and confirmed by the Senate. They come from federal court districts around the country and are appointed by the chief justice of the Supreme Court. Each serves a maximum seven-year term as a FISA judge. They come to the FISA courtroom in Washington in rotating shifts.

Are their decisions about granting or denying surveillance applications a secret? Of course they are, but that is no different than decisions about granting police the right to wire tap a suspect’s phone in any criminal investigation. It is obvious why that decision must remain a secret.

What many are questioning today is whether can we maintain a democracy and still operate secret national security programs. I’ve heard some usually smart people recently saying we the people have to know exactly what methods are used by NSA, the CIA, the FBI and other intelligence agencies. But common sense tells us that once your adversaries know how you are collecting your intelligence they can figure out how to avoid giving you that valuable information.

For years during the Cold War the U.S. was able to secretly monitor the intelligence on the Soviet Union’s submarine activity. Had the Soviets known what methods were used they could have stopped the flow of information in a second. That is one of the reasons the WikiLeaks and Edward Snowden disclosures are so harmful. Some of the intelligence they revealed did endanger agents. But even more importantly, once you see the intelligence, it is much easier to determine how the intelligence has been gathered and stop that source.

All three branches of government are involved in overseeing the constitutionality, cost and quality of our intelligence gathering. Since 1976 the congressional role in those decisions has resided in the House and Senate intelligence committees. Much like the FISA court, individual representatives and senators rotate for limited terms on the intelligence committees. They are involved in most secret operations and have a remarkable record of not disclosing confidential information.

So there are checks and balances in place that monitor the constitutionality of our national intelligence activities. Are they adequate? It seems to me that’s the question that must be constantly re-examined. The people I know who are involved in intelligence oversight believe in our Fourth Amendment rights. But Ronald Reagan’s famous phrase with regard to nuclear arms treaties –“trust, but verify” –is appropriate here. I wish it had not happened because of the recent leaks, but I think we should welcome the ongoing national debate about the proper balance between necessary secrecy and our rights “to be secure against unreasonable searches.”

Ted Kaufman is a former U.S. senator from Delaware.