The revelations keep coming so fast, it's hard to keep up with exactly how far the National Security Agency has wandered from the Constitution in its quest to keep the nation safe from terror.

The volume and diversity of the problems, which only got worse with recent disclosures, and the admitted limitations of the Foreign Intelligence Surveillance Court (FISC) in providing oversight make a strong case for reform.

In recent days, a Wall Street Journal story described how the NSA can tap into about 75 percent of all Internet traffic in the name of national security.

And a secret FISC opinion publicly released Wednesday showed intelligence agencies for several years unlawfully collected tens of thousands of e-mails from Americans.

The 2011 opinion included a sharply worded statement from the then-chief FISC judge who expressed concern about what he saw as a series of misleading statements by the government about its surveillance efforts.

The opinion highlights one of the areas lawmakers should tackle -- the structure of the secret court established by the Foreign Intelligence Act.

It's a non-adversarial court, which means the government's point of view is presented without rebuttal.

Even if you don't believe assertions that FISC judges are rubber stamps for the administration, it's unfair to expect the court to anticipate all cogent arguments contrary to government spying requests.

Even judges who have served on the court acknowledge its limitations.

James Robertson, a retired federal judge who had served on the secret court, last month said that without adversarial arguments, the court cannot be expected to create a body of law governing surveillance programs.

"A judge has to hear both sides of a case before deciding," he told members of a federal oversight board directed by the president to conduct a national conversation on secret surveillance programs.

And more recently, the FISC chief judge said the court doesn't have the capacity to investigate government claims.

"The FISC is forced to rely upon the accuracy of the information that is provided to the court," its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post.

Among the priorities for Congress should be an overhaul of this secret court so it can properly protect the civil liberties of Americans who rely on it, whether they know it or not.

 

—The Denver Post, Aug. 24