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Why we need government surveillance

By Glenn Sulmasy, Special to CNN
June 11, 2013 -- Updated 0046 GMT (0846 HKT)
STORY HIGHLIGHTS
  • Edward Snowden leaked classified intelligence about government surveillance
  • Glenn Sulmasy: Enhanced intelligence activities are necessary in the war on terror
  • Abuse can occur if Congress is not aware of tactics like data-mining, he says
  • Sulmasy: Snowden should be extradited back to the U.S. for interviews and potential trial

Editor's note: Glenn Sulmasy is professor of law and chairman of the department of humanities at the U.S. Coast Guard Academy. He is the homeland and national security law fellow at the Center for National Policy in Washington and author of "The National Security Court System -- A Natural Evolution of Justice in an Age of Terror."

(CNN) -- Edward Snowden's leaks of classified intelligence already have him being compared to Daniel Ellsworth of the Pentagon Papers and Bradley Manning of the WikiLeaks fame. Snowden felt compelled to leak valuable documents about the NSA's surveillance programs.

The 29-year-old was willing to give up his $200,000 job, girlfriend, home in Hawaii and his family. He boldly pronounced, "I'm willing to sacrifice all of that because I can't in good conscience allow the U.S. government to destroy privacy, Internet freedom and basic liberties for people around the world with this massive surveillance machine they're secretly building."

The uproar over the recent revelations about government surveillance programs has raised eyebrows and concerns across the political spectrum. Many on the left have been surprised that most of the same policies (now even the surveillance of U.S. citizens and phone companies) that President George W. Bush initiated, are being used, and expanded upon, by the Obama administration.

Glenn Sulmasy headshot
Glenn Sulmasy headshot

Many on the right say it is government overreach and that Congress should have been briefed on the broad programs. Although the cause for alarm in political or policy circles might have merit, the exercise of these authorities by the executive branch does, in fact, appear to be legal. Once again, the war on al Qaeda is pitting national security against America's longstanding commitment to the promotion of civil liberties and human rights.

Opinion: Edward Snowden is a hero

The current threat by al Qaeda and jihadists is one that requires aggressive intelligence collection and efforts. One has to look no further than the disruption of the New York City subway bombers (the one being touted by DNI Clapper) or the Boston Marathon bombers to know that the war on al Qaeda is coming home to us, to our citizens, to our students, to our streets and our subways.

This 21st century war is different and requires new ways and methods of gathering information. As technology has increased, so has our ability to gather valuable, often actionable, intelligence. However, the move toward "home-grown" terror will necessarily require, by accident or purposefully, collections of U.S. citizens' conversations with potential overseas persons of interest.

Where is NSA leaker Edward Snowden?
What could authorities do with Snowden?
Snowden's path to top secret clearance
Where is Edward Snowden?

An open society, such as the United States, ironically needs to use this technology to protect itself. This truth is naturally uncomfortable for a country with a Constitution that prevents the federal government from conducting "unreasonable searches and seizures." American historical resistance towards such activities is a bedrock of our laws, policies and police procedures.

But what might have been reasonable 10 years ago is not the same any longer. The constant armed struggle against the jihadists has adjusted our beliefs on what we think our government can, and must, do in order to protect its citizens.

However, when we hear of programs such PRISM, or the Department of Justice getting phone records of scores of citizens without any signs of suspicious activities nor indications of probable cause that they might be involved in terrorist related activities, the American demand for privacy naturally emerges to challenge such "trolling" measures or data-mining.

The executive branch, although particularly powerful in this arena, must ensure the Congress is kept abreast of activities such as these surveillance programs. The need for enhanced intelligence activities is a necessary part of the war on al Qaeda, but abuse can occur without ensuring the legislative branch has awareness of aggressive tactics such as these.

Our Founding Fathers, aware of the need to have an energetic, vibrant executive branch in foreign affairs, still anticipated checks upon the presidency by the legislature. Working together, the two branches can ensure that both legally, and by policy, this is what the citizens desire of their government -- and that leaks such as Snowden's won't have the impact and damage that his leaks are likely to cause.

As for Snowden, regardless of how any of us feel about the national security surveillance programs at issue, he must be extradited back to the U.S. for interviews and potential trial -- if for no other reason than to deter others from feeling emboldened to break the law in the same way in the future.

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The opinions expressed in this commentary are solely those of Glenn Sulmasy.

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