2. Legal authority is not optional.
Whether we’re discussing the use of drones, metadata dragnets, or anything else that seems creepy at first mention, the real anxiety stems from a lack of a clearly articulated and defensible legal framework. As disconcerting as it was to learn of a secret presidential kill list, it was far worse to realize that there was essentially no controlling legal authority which bound Barack Obama’s decisionmaking process. Similarly, recognizing that the NSA is not simply unwilling to follow the law but incapable of even understanding it is unacceptable.
No government—or branch of government—wants to have its decisions vetted by any sort of watchdog, but that’s the only way to minimize errors and build confidence that national security operations are not ultimately creating a government within a government. We have reached the point where the courts originally set up by 1978’s FISA (itself a product of an earlier era of massive violations of civil liberties), need a complete overhaul. If even sitting senators have trouble getting information about how and why the government is collecting information on citizens, something is wrong beyond repair.
The same is true for the foundational document in the War on Terror, which was passed by Congress on September 14, 2001 and grants vague and sweeping powers to the president of the United States. It reads, “The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” A dozen years after the 9/11 attacks, any such declaration needs to be scrapped, rewritten, and voted on—in the cold light of day, not a hot flash of panic.
What was once a far more hierarchical, top-down, and force-fed relationship is much flatter and more voluntary.
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