It is a tribute to the power of the national security state that Edward Snowden’s revelations of NSA abuse have not resulted in any real reduction in NSA’s powers and that no consequences have befallen those responsible for the abuses.
Last week, President Obama revealed his proposed “reforms” to the intelligence community’s electronic surveillance practices. Ignoring the pleas of the Privacy and Civil Liberties Oversight Board and privacy and civil liberties groups to end the National Security Agency’s (NSA) bulk collection of Americans’ telephone records, the president has chosen to keep the program in a lightly modified form.
Those responsible for authorizing and running these programs—including two presidents, their respective NSA directors, attorneys general and a slew of other lower‐ranking officials—have successfully constructed a system of mass surveillance that operates in an accountability‐free zone politically and is manifestly ineffective. But the true threat these programs pose is to the very experiment that is America—a country created in response to the very kinds of warrantless searches embodied in these and other post‐9/11 government activities.
Today, through surveillance collection programs like Section 215 of the Patriot Act, the federal government has stored data showing if you’ve ever visited a website offering ammunition for sale, whether you’ve ever called a gun shop or shooting range, and whether any of the people in your calling circles have done so. The same situation exists with respect to any calls you’ve made to a psychologist or psychiatrist, or to a family planning organization, or to an overseas chapter of an international human rights organization you support. The list is endless, and the federal government has no business having any of that data.
Of course, these assaults on the Bill of Rights would not have been possible without the active participation of Congress. The original sin was the passage, just six weeks after the 9/11 attacks, of the Patriot Act.
Having worked in the House of Representatives for over a decade and participated in multiple political campaigns, I understand well the intense pressure House and Senate members faced to “do something” in the wake of the attacks. But the Patriot Act was offered up and passed based on a false premise—that the attacks that cost the lives of nearly 3,000 Americans happened because federal intelligence and law enforcement agencies lacked enough information to uncover and prevent the attacks.
That assumption was thoroughly refuted by the Congressional Joint Inquiryreport and the 9/11 Commission report, but only long after the Patriot Act had become law and the damage to the Constitution done. Neither report managed to derail the “collect it all” mindset during multiple reauthorization opportunities over the past decade. Emotion and propaganda triumphed over hard facts—a situation that persists to this day, in spite of all that Edward Snowden has revealed to us.
When an earlier generation of NSA abuses came to light in 1975, roughly three years elapsed before the Foreign Intelligence Surveillance Act reform legislation became law. Back then, there was broad consensus on the Church Committee that real intelligence reform was needed. No such consensus exists on Congress’s Intelligence or Judiciary committees today, though at least on the Judiciary Committees there are many who do recognize the need and have worked for change.
And while last year’s vote on the NSA surveillance amendment introduced by Representative Thomas Massie, R‐Kentucky, and Zoe Lofgren, D‐California, showed that getting a reform measure through at least one house of Congress is possible when a truly open legislative floor process prevails, the ultimate denouement on that legislation demonstrated the continued power of national security state allies in the congressional leadership to derail even modest reform efforts through backdoor measures. Indeed, in the wake of a bumbling “plot” to attack the U.S. Capitol, House Speaker John Boehner again invoked the need to keep the soon‐to‐expire Section 215 Patriot Act provisions in place, in spite of its demonstrated ineffectiveness and questionable constitutionality.
If we are to end our post‐9/11 national security state, the congressional leadership must come to believe that blocking efforts to restore the Bill of Rights will result in real political consequences. If, however, they continue to see no political consequences, Americans’ rights to privacy and due process will continue to diminish into artifacts of a bygone era.