As part of the fallout of the Boston bombings, we’re probably going to get some new laws that give the FBI additional investigative powers. As with the Patriot Act after 9/11, the debate over whether these new laws are helpful will be minimal, but the effects on civil liberties could be large. Even though most people are skeptical about sacrificing personal freedoms for security, it’s hard for politicians to say no to the FBI right now, and it’s politically expedient to demand that something be done.
If our leaders can’t say no—and there’s no reason to believe they can—there are two concepts that need to be part of any new counterterrorism laws, and investigative laws in general: transparency and accountability.
Long ago, we realized that simply trusting people and government agencies to always do the right thing doesn’t work, so we need to check up on them. In a democracy, transparency and accountability are how we do that. It’s how we ensure that we get both effective and cost-effective government. It’s how we prevent those we trust from abusing that trust, and protect ourselves when they do. And it’s especially important when security is concerned.
First, we need to ensure that the stuff we’re paying money for actually works and has a measureable impact. Law-enforcement organizations regularly invest in technologies that don’t make us any safer. The TSA, for example, could devote an entire museum to expensive but ineffective systems: puffer machines, body scanners, FAST behavioral screening, and so on. Local police departments have been wasting lots of post-9/11 money on unnecessary high-tech weaponry and equipment. The occasional high-profile success aside, police surveillance cameras have been shown to be a largely ineffective police tool.
Sometimes honest mistakes led organizations to invest in these technologies. Sometimes there’s self-deception and mismanagement—and far too often lobbyists are involved. Given the enormous amount of security money post-9/11, you inevitably end up with an enormous amount of waste. Transparency and accountability are how we keep all of this in check.
Second, we need to ensure that law enforcement does what we expect it to do and nothing more. Police powers are invariably abused. Mission creep is inevitable, and it results in laws designed to combat one particular type of crime being used for an ever-widening array of crimes. Transparency is the only way we have of knowing when this is going on.
For example, that’s how we learned that the FBI is abusing National Security Letters. Traditionally, we use the warrant process to protect ourselves from police overreach. It’s not enough for the police to want to conduct a search; they also need to convince a neutral third party—a judge—that the search is in the public interest and will respect the rights of those searched. That’s accountability, and it’s the very mechanism that NSLs were exempted from.
When laws are broken, accountability is how we punish those who abused their power. It’s how, for example, we correct racial profiling by police departments. And it’s a lack of accountability that permits the FBI to get away with massive data collection until exposed by a whistleblower or noticed by a judge.
Third, transparency and accountability keep both law enforcement and politicians from lying to us. The Bush Administration lied about the extent of the NSA’s warrantless wiretapping program. The TSA lied about the ability of full-body scanners to save naked images of people. We’ve been lied to about the lethality of tasers, when and how the FBI eavesdrops on cell-phone calls, and about the existence of surveillance records. Without transparency, we would never know.
A decade ago, the FBI was heavily lobbying Congress for a law to give it new wiretapping powers: a law known as CALEA. One of its key justifications was that existing law didn’t allow it to perform speedy wiretaps during kidnapping investigations. It sounded plausible—and who wouldn’t feel sympathy for kidnapping victims?—but when civil-liberties organizations analyzed the actual data, they found that it was just a story; there were no instances of wiretapping in kidnapping investigations. Without transparency, we would never have known that the FBI was making up stories to scare Congress.
If we’re going to give the government any new powers, we need to ensure that there’s oversight. Sometimes this oversight is before action occurs. Warrants are a great example. Sometimes they’re after action occurs: public reporting, audits by inspector generals, open hearings, notice to those affected, or some other mechanism. Too often, law enforcement tries to exempt itself from this principle by supporting laws that are specifically excused from oversight…or by establishing secret courts that just rubber-stamp government wiretapping requests.
Furthermore, we need to ensure that mechanisms for accountability have teeth and are used.
As we respond to the threat of terrorism, we must remember that there are other threats as well. A society without transparency and accountability is the very definition of a police state. And while a police state might have a low crime rate—especially if you don’t define police corruption and other abuses of power as crime—and an even lower terrorism rate, it’s not a society that most of us would willingly choose to live in.
We already give law enforcement enormous power to intrude into our lives. We do this because we know they need this power to catch criminals, and we’re all safer thereby. But because we recognize that a powerful police force is itself a danger to society, we must temper this power with transparency and accountability.
This essay previously appeared on TheAtlantic.com.
Posted on May 14, 2013 at 5:48 AM •
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