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Government needs to explain why NSA can spy on us

Updated: August 6, 2013 6:05AM

On more than one occasion, whether it was regarding the Obama or Bush administration, I’ve said I’m willing to cut some slack to the people charged with the responsibility of safeguarding my family and country in the age of terrorism. Yet, that trust must be reciprocated. The leaders asking the American people to have faith in them must in turn be on the square with the public about their legal authority to do the things they say must be done to protect us.

This is the central point of contention in the controversy about the disclosure that the National Security Agency collects mega-data on the communications records of virtually every American. As President Barack Obama has said, no one’s phone conversations are routinely bugged or emails read. That can happen only when authorities can show proper cause to a special federal court that a possible connection to a foreign-based terrorist exists.

The proceedings of the Foreign Intelligence Surveillance Court are secret. That’s fraught with the potential for trouble but defensible on grounds that making public its work would tip off the very terrorists we’re trying to catch and prevent from doing harm. What is not defensible is the Obama administration’s insistence on keeping secret the legal reasoning for the court’s decisions under the Patriot Act — and thus the lawfully justified basis for the unprecedented gathering of the communications records of all of us. Opponents of the NSA surveillance program argue that it constitutes a violation of the Fourth Amendment protection against unreasonable search and seizure.

Several senators seeking the legal rationale were rebuffed by the court’s presiding judge last spring, who argued that the legal analysis in the judges’ opinions was “inextricably intertwined” with classified information about terrorists and their plots. That sounds like rationalization. It’s incomprehensible that the American people can’t be entrusted with the legal reasoning behind the Patriot Act’s massive intrusion into their records.

Sen. Ron Wyden (D-Ore.), one on the group of lawmakers also including Sen. Rand Paul (R-Ky.) seeking the legal ruling, rightly says, “It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced and adjudicated in complete secrecy.” As a member of the Senate intelligence committee, Wyden probably knows more than he can disclose publicly, as evidenced by his statement that “the American people would be absolutely stunned” if they knew the full extent of what was going on.

The American Civil Liberties Union, which filed suit to get the records, reasonably argues that administration officials “seem to believe that the public’s understanding should be based only on information the government selectively releases.”

The administration’s policy is tainted by hypocrisy. It published the legal arguments of the Bush administration for enhanced interrogation techniques. But it resists releasing the legal basis for the NSA surveillance, just as it balked at detailing its legal authority to target suspected enemy combatants, including U.S. citizens, for drone attacks.

On Sept. 11, 2001, terrorists armed only with box cutters killed 3,000 Americans. The threat of terrorism is ever present, and I’m still willing to cut some slack for those charged with battling this menace. But this long July 4th weekend is a good time to remember that the government needs to make sure the voters have all the information they need for informed decisions about how far we must go to see that another 9/11 never happens.

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