What proof should be needed to show collecting intelligence that violates freedoms is worth it?

Should individual’s freedoms be infringed on for reasons of ‘national security’?

December 30, 2013 00:44
3 minute read.
Deputy Attorney General Shai Nitzan (L).

Shai Nitzan 370. (photo credit: REUTERS/Denis Balibouse)


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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 programs.

The technology and massiveness of the programs sometimes obscures that the root questions in the debate are simple.

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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 been prevented.

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.

The committee permitted extending certain detainees’ detention without them being present in court, delaying court oversight and delaying access to a lawyer.

Yesh 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 interrogation.”

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 prevent.

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.

On one 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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