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Protection from terrorism and intrusion on privacy rights — we can, we must have both

The famous conservative Republican lawyer and former solicitor general under President George W. Bush, Ted Olson, and I sat next to each other while we watched in real time the activity of the most highly classified and secret antiterrorist program being conducted by the United States: the “Terrorist Surveillance Program,” or TSP as it became known after it was first disclosed by The New York Times in December 2005.

There we were, in the bowels of the National Security Agency (NSA), guarded by security personnel, sworn to secrecy at the highest level of classified status in the U.S. government. I felt great trepidation. I worried that I would be witnessing a gross violation of civil liberties and the inherent constitutional right of every American to be protected from government eavesdropping and intrusion on privacy rights. 

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We were there because we were members of a five-member Privacy and Civil Liberties Oversight Board appointed personally by President George W. Bush after an extended period of background checks and reviews by intelligence agencies and the FBI. The board was created on the recommendation of the 9/11 Commission and enacted by congress as part of the Intelligence Reform Act of 2004. 

The five of us on this board were civilians, not part of the government, and were people of different political stripes — left, right and center. But we agreed on one principle: common skepticism about an overly intrusive and powerful government intruding on privacy rights and civil liberties of American citizens. This is the truly purple sweet spot between Tea Party conservatives and civil liberties liberals.

I watched and talked to the people doing the work under this “Terrorist Surveillance Program” as they were working in real time; many of them were young people in their 20s and 30s. And then I found my trepidation heightened, but for the opposite reason of what I had first felt. 

To this day, I cannot reveal what I saw or what they were doing, under the laws of classification and secrecy to which I am still bound. But I can say this: By the time I was done, after hours of watching them doing their work, my trepidation was that the rules they were required to follow, the checks and balances to avoid even getting close to the line where privacy rights of Americans might be compromised, might have gone too far, might have caused us to miss catching another 9/11 terrorist plot before it happened. 

In the days following this experience, however, it appeared to many of us that one thing needed to be fixed: the TSP and other anti-terrorist programs needed a more solid legal and constitutional foundation. The Foreign Intelligence Surveillance Act (FISA) was first enacted in 1978, before there was the Internet or the word “server” meant anything more than a waiter in a restaurant.

Finally, in 2007, unfortunately too many years after the fact of the TSP, Congress began the process of modernizing FISA: strengthening the FISA court’s oversight to raise its standards of review before allowing anti-terrorist surveillance and intercepts; and requiring greater oversight by Congress and ultimately responsibility by the president to supervise the Justice Department and be personally aware of all that was going on in the name of stopping terrorism.

I was reminded of those mixed emotions and conflicting principles of privacy rights vs. protection from terrorists while hearing over the past several weeks about extensive government interceptions of telephone records and Internet transmission — from Verizon telephone records to the breaking news about the PRISM program collecting Internet data directly from the major Internet companies such as Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, YouTube and Apple. 

We need to fear this program and these efforts and the danger they represent to our privacy rights. We need to speak out, as many (including this writer) have, against poor judgment exercised by law enforcement officials in the name of stopping government leaks, such as the awful judgment to name James Rosen, a reporter doing his job, as a co-conspirator in violation of the Espionage Act. 

But on the other hand — and there is another hand, despite the absolutist, sanctimonious voices I heard last night on television, speaking as if privacy rights are the only to be considered here — we also need protection from the murderers and sociopaths who celebrate death rather than life and were responsible for 9/11 and the Boston Marathon murders.

The solution is not, and will never be, perfect. But as Abraham Lincoln noted when he suspended habeas corpus briefly during the Civil War, “the Constitution is not a suicide pact.”

We need, we can have, a government that protects our civil liberties and privacy rights and protects our families from evil terrorists.  

We must have both.

Davis is former special counsel to President Clinton and is principal in the Washington, D.C., law firm of Lanny J. Davis & Associates, in which he specializes in crisis management. He is special counsel to Dilworth Paxson of Philadelphia and the author of a recently published book, Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life (Threshold Editions/Simon and Schuster). He can be followed on Twitter @LannyDavis.