Last week, Federal Communications Commission Chairman Kevin Martin politely rebuffed Rep. Edward Markey’s (D-Mass.) request to investigate possible privacy violations by large telecom carriers in connection with their alleged participation in the National Security Agency’s post-9/11 warrant-less eavesdropping-surveillance program. The reason: the classified nature of NSA’s activities.
At the core of the controversy is the question of whether telecom service providers illegally supplied the NSA with proprietary customer information. How do you ever get to the heart of the matter if national security is summarily invoked? That NSA’s activities are classified does not necessarily make them legal. Where are the checks and balances?
In his letter to Markey, Martin volunteered he was taking his cue from others in the Bush administration. He noted the U.S. government’s motion to dismiss a class-action suit in California against AT&T Inc. on the basis of military and state secrets, pointing specifically to declarations by John Negroponte, director of national intelligence, and NSA Director Keith Alexander.
“The representations of Director Negroponte and General Alexander make clear that it would not be possible for us to investigate the activities addressed in your letter without examining highly sensitive classified information,” Martin said. Sorry, Ed, my hands are tied.
Some legal analysts predict NSA privacy suits against telecom firms are unlikely to shed light on whether phone-call records of millions of Americans are in the surveillance mix. Again, the national security trump card. Does this mean federal courts and federal agencies are neutered, helpless to sort out important legal questions at issue?
The war on terrorism is not apt to be won or lost in an absolute sense. Rather, it looks to be a long-term, ongoing battle. This is, after all, serious and deadly business. Does that mean the tricky balancing of national security and privacy is doomed to be heavily skewed toward the former well into the future?
Maybe it’s a symptom of a broader mindset shift that policy-makers are only partially conscious of.
Congressional Republicans and Democrats are angered over the government’s raid of Rep. William Jefferson’s (D-La.) offices as part of an investigation into alleged bribery. “The department has conducted similar searches in the past, including the chambers of federal judges and the private residences of members of Congress, and we believe our actions were lawful and necessary under these very unique circumstances,” said Deputy Attorney General Paul McNulty.
Until last week, the administration only had to worry about mollifying the nation’s telecom subscribers on the privacy issue. Now, it has to do some explaining to 27 million U.S. veterans as well.
