SEVIS illustrates larger problem

A delicate balance must be struck between national security and civil liberties interests.

Foreign students will be getting more attention from “big brother.” Last week, the U.S. Department of Homeland Security announced it will give the FBI direct access the Student and Exchange Visitor Information System. The system contains students’ biographical, financial and academic information.

This infringes on foreign students’ civil liberties and will likely result in fewer students studying abroad in the United States.

The FBI feels foreign students pose a threat to national security, which falls under its jurisdiction. But to protect students’ civil liberties, there should be limitations on what information the FBI has easy access to. In this issue, foreign students are not alone, though their status as noncitizens limits their options for recourse both legally and practially. The FBI as an institution is poorly suited to protect civil liberties. It exists to investigate crime and protect us. This focus makes it hard for the FBI to consider abstract civil liberties, but someone has to.

Current law protecting U.S. citizens, including students, is both troubling and as clear as mud. Under the USA Patriot Act, to access private information, officials sometimes need a subpoena or warrant from a regular court, at other times, approval from the Foreign Intelligence Surveillance Act court, and in some instances, no outside approval at all.

On the other hand, the judiciary is better equipped to safeguard civil liberties. Judges are trained in the rule of law first and foremost, which includes a respect for civil liberties, though the amount of that respect differs from judge to judge.

This lack of clarity makes normative calls for action difficult. Still, we can say without reservation that all requests for private information, related to U.S. or foreign citizens, must at least go through the FISA court. The FISA court by no means offers a person his or her day in court. It is highly secretive and there is no adversarial representation. Still, at least it is minimal judicial supervision. As for our safety, the FISA court considers national security its “pre-eminent role.” It rarely denies law enforcement requests and modifies them sparingly, to say the least.

More importantly, the 9-11 commission’s recommendation of a civil liberties board must become reality. That reality must be what the commission, not the administration, has envisioned. It must be independent, nonpartisan and transparent.

Sept. 11, 2001 changed how people look at security. But it doesn’t necessarily follow that we must sacrifice all civil liberties. Clearly, there must be a workable balance. While we feel ill-qualified to detail how that balance should look, the government’s patronizing approach, which more or less entails repeating “trust us,” becomes increasingly tiresome with each new policy.