Who watches Obama’s watchers?

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In any free society, governments should strike a careful balance when it comes to national security. While it must always be their first duty to do what they can to protect the public from terrorists, they should also strive to ensure that liberty and democracy are not ignored in the process.

This week’s revelations that the US federal authorities routinely trawled through phone call records and data communications is troubling precisely for what is says about the absence of such balance.

The US government has in recent years acquired a formidable arsenal of surveillance powers. The Patriot Act, passed immediately after the 9/11 attacks, gave Washington sweeping rights to look over people’s shoulders at their telephone records.

This was extended to the internet by the Protect America Act, passed in 2007, giving the government the ability to access the data communications of Americans and foreigners from the servers of nine leading companies through a programme known as “Prism”.

These legal powers may be necessary to deal with the continuing threat from terrorism that the US faces – one graphically underlined by the bombing attacks in Boston. But to retain public confidence, they should always be proportionately exercised and subject to some effective checks.

There has been congressional oversight of these programmes and no one as yet has suggested anything illegal has occurred. But the scale and scope of the surveillance is startling. The judicial checks appear to have been little more than rubber stamps. Under the provisions of the Patriot Act, the National Security Agency was able to obtain warrants allowing it to access the records of all telephone customers – excepting only the actual contents of the call.

The special body issuing them – the Orwellian-sounding Federal Intelligence Surveillance Court – sat in secret. In effect, that put its decisions – and the reasoning that underlay them – beyond any objective scrutiny.

While most Americans would rightly scoff at the notion that they live in some sort of police state, they should be vigilant about the steady encrustation of clandestine executive powers that has accompanied the so-called “war on terror”, and the administration’s evident willingness to exercise them.

Before he was elected, President Barack Obama attacked the extension of special powers that had occurred under his predecessor, George W Bush. In office, however, his administration has not only retained them but shown an unexpected relish for wielding clandestine authority, whether in seeking secret warrants to go through a news agency’s phone records or pursuing the drone strike programme in Pakistan.

The administration has responded to the revelations about data-gathering by defending its actions, claiming that they are vital in protecting America from a wide variety of threats.

Necessity alone is not sufficient justification, however. Given the scale of the intrusions involved, there are legitimate questions about the scope and permanence of the state’s data-trawling “dragnets” of American and foreign citizens. These do not simply involve the nature of the data extracted. They concern who has access to it, how long it is retained and the uses to which it is put.

Extraordinarily little is even known about how the Prism programme operates. So much so that the technology companies whose servers are allegedly accessed claim to know nothing about it.

The administration has promised to declassify some aspects of its secret intelligence-gathering programme to dispel public concerns. This is welcome but it should go further.

While it would be comforting to think otherwise, both the terrorist threat and the era of big data are here to stay. It would be unrealistic, therefore, to wish away the need for some sort of surveillance capability that will inevitably have the power to intrude into people’s everyday digital communications.

The answer must be to establish a more robust mechanism capable of adjudicating with a view to retaining public confidence in the exercise of these extraordinary powers. Perhaps the best option would be to create an independent government oversight body, empowered by statute to evaluate all state surveillance.

As Mr Obama rightly said on Friday, it is impossible to have 100 per cent security and 100 per cent privacy. But given the powers acquired by his administration, he should strive to strike a more convincing balance.

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