A perpetual battle in
both the US and Israel over balancing fighting terror with violating privacy
rights/freedoms has hit a crescendo this past week in the political and legal
wars over the US NSA’s (National Security Agency) electronic spying
The technology and massiveness of the programs sometimes
obscures that the root questions in the debate are simple.
As summed up
by two contrary US court rulings and contrary summaries of an Obama-sponsored
committee’s recommendations, the questions are: does the necessity of the spying
programs need to be proven by attacks actually prevented or by attacks that
happened/may happen that could be prevented? In one US federal court ruling, a
large portion of the NSA’s spying was declared unconstitutional largely on the
basis that the court said that the government failed to show enough actual cases
where the program has prevented attacks.
But only a short time later, a
different US court said that the same program was not only legal but imperative,
largely on the basis that the government had proven that had the program been in
place prior to 9/11, the attacks on the Twin Towers in New York City could have
The court also made reference to preventing similar
attacks in the future.
While the two courts came out differently on a
range of other interpretive issues, the question of what proves that the NSA’s
programs are worthwhile – actual prevented attacks or theoretical past and
future preventable attacks – to violate major privacy and liberty rights in the
name of “national security,” is the essence of the debate.
All of this
ties into similar issues in the endless debate in Israel; not on NSA electronics
communication spying but on the use of administrative detention and curtailing
other security suspects’ rights.
In April 2012, following a heated
debate, the Knesset Constitution, Law and Justice Committee extended a
controversial emergency law on detainee rights with unusual limitations,
relative to other democracies, until the end of 2014.
permitted extending certain detainees’ detention without them being present in
court, delaying court oversight and delaying access to a lawyer.
Atid MK Adi Kol highlighted the fact that the head of the Shin Bet’s (Israel
Security Agency) interrogations unit told them that certain administration
detention provisions had not been used in at least three years, and asked why
the provision was necessary if the whole point of an emergency law is to deal
with an imminent and temporary situation.
The Shin Bet representative
said in response that “maybe tomorrow I will need to use this provision, and I
won’t be able to save someone’s life.”
“This is an emergency provision
and I pray that we won’t need to use it,” he continued, but added that
“sometimes a pause in the interrogation can fatally harm the
Shai Nitzan, just appointed state attorney two weeks ago,
gave a spirited defense of the law, saying that “it is the Knesset’s right to
vote it down,” but essentially implying that the committee would then have on
its conscience any terror attacks that the law could have helped
Again, the battle came down to whether freedoms should be
infringed on for “national security” based on how many attacks have been
prevented versus the extra potential vulnerability to attack without curtailing
security suspects’ rights.
Michael Morell, a former top CIA official and
one of only five members of US President Barack Obama’s powerful group that
recently critiqued all large scale NSA electronic spying programs, may have best
summed up the dilemma in his Saturday Oped in The Washington Post.
hand, he bought into a spying program (or in Israel, one could argue curtailing
detainee rights) that could “prevent the next 9/11” on the grounds that it only
needs to be successful once to be “invaluable.”
On the other hand, the
lack of current recent examples of prevented attacks may have led him to
conclude that slowing down and modifying the spying process somewhat to
strengthen oversight and provide better privacy and civil liberty protections,
even if it meant a “loss of flexibility” for battling terror, was “worth the
protection of personal freedom it provides.”
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