Goldmark: Secrecy of surveillance court is suffocating

The Fourth Amendment to the Constitution establishes "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures ..."

We have drifted wildly off course from that Bill of Rights requirement, given the revelations of massive surveillance by the National Security Agency.

We live in an age of terrorism and we must defend ourselves -- resourcefully and prudently, certainly and aggressively, if necessary. Future attacks in American or European cities will jar us into renewed vigilance.

But we also must strengthen the values we are defending: the principles and safeguards of liberty upon which this country is founded. The NSA scandal teaches us that we are not doing that today.

The Foreign Intelligence Surveillance Court operates like no other court in the land because its deliberations and decisions are almost always secret and only the government gets to argue before its 11 judges. The jurists on the court -- commonly known as the FISA court -- are appointed by the chief justice of the Supreme Court without Senate review or confirmation.

I have read some of the court's decisions online. (You can track them down if you search for FISC NSA surveillance decisions, and follow links from some of the news agencies.) Recent rulings leave no doubt that the court, which historically has been a virtually unquestioning supporter of the intelligence agencies, thinks the NSA has exceeded its authority.

Here are some quotes from FISA court decisions: "The government disclosed that NSA's acquisitions had exceeded the scope of what the government had requested and the FISC had approved."

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And: "The government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe."

And, the court refers to "... NSA's long-standing and pervasive violations of the prior orders in this matter."

The government must not conduct the war on terror in total secrecy, or by breaking the law, or without the checks and balances to enforce accountability. Give human beings unchecked authority, modern technology and secrecy, and many will drift into abuse of power. The Founding Fathers knew this and they wanted us never to forget it.

Assessing the extent of the NSA surveillance and its impact will take years because so much is classified and because those who have the facts have failed to provide a full picture of what's going on. But that does not mean we can't start acting now.

We need to take two steps immediately:

First, the public should be represented before the FISA court; I made that proposal last summer. There must be a public defender of the Bill of Rights, fully empowered and appropriately cleared, to subpoena information, challenge the government, and present the case for privacy and civil liberties before the court. A pale version of this idea appears among 46 recommendations issued by a panel appointed by President Barack Obama to review NSA surveillance activities.

Second, our elected leaders must start to speak frankly about what the government should or should not do to protect us against terrorism. And I don't just mean the president; I mean governors and mayors, too. The mayor of New York, for example, should tell us about the status of recommendations to consider a compartmentalization capacity in the subway system that could isolate a train believed to be carrying an explosive or biological weapon.

These are difficult subjects and will cause alarm and debate among some. Fine. A little alarm and a lot of debate are overdue; official silence is helping to suffocate us and our rights.

Peter Goldmark, a former budget director of New York State and former publisher of the International Herald Tribune, headed the climate program at the Environmental Defense Fund.