Instapundit: Domestic surveillance will be a vehicle for oppression, sooner or later
posted at 3:20 pm on February 11, 2014 by Ed Morrissey
Glenn Reynolds’ latest column for USA Today is worth noting for its clear warning on the corrosive nature of domestic spying. The NSA claims it’s not conducting the kind of snooping of which Glenn warns, but then again, they didn’t admit to the surveillance they were conducting until it became impossible to deny. And that, Glenn says, is the problem:
But if the federal government has broad domestic-spying powers, and if those are controlled by the executive branch without significant oversight, then the president has the power to snoop on political enemies, getting an advantage in countering their plans, and gathering material that can be used to blackmail or destroy them. With such power in the executive, the traditional role of the other branches as checks would be seriously undermined, and our system of government would veer toward what James Madison in The Federalist No. 47 called “the very definition of tyranny,”that is, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands.”
That such widespread spying power exists, of course, doesn’t prove that it has actually been abused. But the temptation to make use of such a power for self-serving political ends is likely to be very great. And, given the secrecy surrounding such programs, outsiders might never know. In fact, given the compartmentalization that goes on in the intelligence world, almost everyone at the NSA might be acting properly, completely unaware that one small section is devoted to gather political intelligence. We can hope, of course, that such abuses would leak out, but they might not.
Rather than counting on leakers to protect us, we need strong structural controls that don’t depend on people being heroically honest or unusually immune to political temptation, two characteristics not in oversupply among our political class. That means that the government shouldn’t be able to spy on Americans without a warrant — a warrant that comes from a different branch of government, and requires probable cause. The government should also have to keep a clear record of who was spied on, and why, and of exactly who had access to the information once it was gathered. We need the kind of extensive audit trails for access to information that, as the Edward Snowden experience clearly illustrates, don’t currently exist.
In addition, we need civil damages — with, perhaps, a waiver of governmental immunities — for abuse of power here. Perhaps we should have bounties for whistleblowers, too, to help encourage wrongdoing to be aired.
In other words, we need to adhere to the Constitution for all law-enforcement activity within the US. NSA’s external mission can exist in accordance with that without much change, if any at all. That seems pretty simple to me, and a pretty good principle to follow.