A surveillance camera is pictured in front of the U.S. flag, September 20, 2016.

© 2016 Reuters

Does the National Security Agency (NSA) understand that it should be accountable to its overseers in the other branches of government – and to the public?

Few would dispute that monitoring someone’s communications is sometimes necessary to achieve a legitimate goal. However, it is critical that such activities be subject to independent, impartial, and effective oversight involving all branches of government to prevent violations of people’s rights. Testimony by top officials during a Senate hearing yesterday gives rise to doubts as to whether the United States intelligence agencies accept this principle. As a result, it appears that Congress, which is responsible for ensuring that the intelligence agencies respect the law, will not have crucial information it needs to determine whether one of the country’s most important and problematic surveillance laws (which will expire at the end of 2017 unless renewed) is leading to more abuses than we realize.

The NSA and the Department of Justice are operating at least two large-scale warrantless surveillance programs under this law, Section 702 of the Foreign Intelligence Surveillance Act, which empowers US authorities to “target” foreigners outside the US for warrantless monitoring of their telephone and internet communications. The law also allows the authorities to scoop up a potentially vast number of communications belonging to people inside the US “incidentally.” These programs damage privacy and free expression rights both in the US and abroad; they may also be harming fair-trial rights in the US and having a discriminatory impact on the country’s immigrant and border communities.  

For nearly six years, members of Congress have been asking the intelligence agencies to explain the impact of this warrantless surveillance on Americans. While the agencies have long indicated that they were exploring ways of providing those estimates, they now seem to have changed their minds. Yesterday, Director of National Intelligence Dan Coats told a Senate committee that it would be “infeasible” to do so. Representative John Conyers, who has played a lead role in pressing for these disclosures, quickly condemned this position as “unacceptable” and confirmed that a House committee had discussed the matter with the executive branch in 2016 and “approved the specific methodologies that the NSA might use to make good on their promise.” 

The intelligence agencies’ refusal to answer such fundamental questions from Congress gives rise to fresh fears about the true scope, nature, and accountability of these programs. As Congress debates whether to renew Section 702, the executive branch should be moving forward on the transparency and accountability of its surveillance activities, not back.