Sunday, July 14, 2013

American Secret Court – Necessity Or Travesty?


Lately, the press has been abuzz with the revelation that a "secret court" has been approving surveillance warrants for the NSA, without hearing counter arguments or opening proceedings to public scrutiny.

The existence of the program came to light when now-retired Judge James Robertson, who served on the Foreign Intelligence Surveillance Court from 2002 to 2005, blew the proverbial whistle.  According to Robertson, the court hears only the government's side when secretly deciding whether to approve search warrants and surveillance requests.

Being a card carrying liberal, I typically fall in line with those outraged by such news, and part of me has.  The problem is that I find myself torn on this particular issue.

On the one hand, there's a tiny lawyer in the back of my head giving a fevered lecture on the idea that our judicial system can't maintain a justifiable air of integrity unless its adversarial structure remains intact.  A tribunal, functioning as a "rubber stamp" for the state, isn't truly an impartial court of law, but is an extra-constitutional extension of the executive branch.  The presence of such an unchecked extension flies in the face of the very concept checks & balances.

I get that, and I can easily stand behind such an argument.  The dilemma becomes apparent though, when trying to conceive of a realistic alternative to the covert warranting process.

No, we don't want a government that can spy on anyone who touts an offbeat political view, or detain any citizen wearing a turban.  Yet, we also can't expect government agencies to tip their hand, by notifying a suspect's legal representative, every time they think they've caught wind of a terrorist cell.  Notifications, allowing legal challenges to potential warrants, could conceivably force suspects further underground.  Worse yet, such notifications could coax cells into executing terrorist acts before they otherwise would have.

We all know Ben Franklin said, "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."  However, he lived in a day when global communications took months, rather than nano-seconds, and a single act of terror couldn't kill 2,977 innocent people on a sunny September morning.

Should we sacrifice a certain level of  privacy, in order to feel safe, and trust the government not to abuse that sacrifice, or was Franklin still right?  Is the constant threat of mass murder a justifiable price to pay to assure individual privacy and freedom?   

I don't know.  What do you think?

Source = Former FISA judge sees problems in secret court – CNN Security Clearance - Blogs
The picture above was created by a government unit of the United States  and is in the public domain under U.S. law. 


  1. Msybe keep the "secret court" but make the transcripts public after a certain amount of time. That could maintain both the secrecy and the accountability needed?

    1. Not a bad idea at all. I like that. :-)