Last week, the House Judiciary and Intelligence committees approved a bill that would begin the process of restoring constitutional limits to dragnet government surveillance. While a praiseworthy step in the right direction, the progress to date remains both entirely too slow, and deferential to the intelligence agencies.
Congress should immediately pass the USA FREEDOM Act, and then get back to work to pass the further restrictions on NSA spying necessary to render it compliant with the First and Fourth amendments.
A limited reform package
Several observers have noted various ways in which the bill passed out of the committees last week leaves a great deal to be desired. The House committees watered down the bill's provisions before approving it, undermining its ability to meaningfully restrain government spying.
For instance, the revised bill would fail to stop "back door searches," through which the government targets Americans for surveillance while claiming to target foreigners in order to evade legal restrictions created in the 1970s after the agencies were caught spying on peaceful domestic social movements. In addition, the measure that would have created a public advocate to lend some legitimacy to the secret FISA court was scuttled. Instead, the court will retain discretion to appoint a panel of privacy advisors.
Finally, the revised bill fails to ensure transparency. Its public reporting requirements, watered down in committee, previously would have covered a number of domestic surveillance activities, including controversial National Security Letters long abused by the FBI.
This week, a coalition of 30 organizations wrote to Congress to address vulnerabilities where "several technical corrections and clarifications to the bill are required if Congress is to help ensure that the bill language is not misinterpreted and its stated goal of ending bulk collection is met." Encyclopedic writer and analyst Marcy Wheeler questioned "whether the bill will actually expose more kinds of US person records to the scrutiny of the NSA." And Georgetown law professor David Cole said "the biggest mistake any of us could make would be to conclude that this bill solves the problem."
Most fundamentally, Danielle Brian from the Program on Government Oversight said, "We cannot expect this bill to protect privacy and civil liberties while the public and Congress continue to be in the dark about the policies in practice."
These concerns are all valid. Unfortunately, they're just the beginning of the story.
Deferring to agencies despite a decade of secret crimes
Beyond particular concerns with changes wrought by Senate committees to the USA FREEDOM Act are a series of broader problems. Despite its welcome progress, the policy reform process reflects a troubling pattern of congressional deference to agencies and officials without any legitimate basis.
No senior intelligence agency official has confirmed even a single instance in which the NSA dragnet helped stop a potential terrorist attack. Multiple independent review panels have affirmatively reached the conclusion that NSA surveillance has never actually helped protect national security, despite the self-protecting statements of executive officials to the contrary.
Meanwhile, some of those very same officials have been caught red-handed lying to Congress, about matters as fundamental as whether the NSA is spying on millions of Americans. The Director of National Intelligence misled Congress, despite having advance written notice of that question, prompting several members of Congress to seek his appropriate prosecution for perjury.
Instead, the officials implicated in mass constitutional crimes all remain in place, and only after a year since learning the facts is Congress finally taking steps to restore the rule of law.
The proportionate response to the Snowden revelations would be to remove the entire senior leadership of the domestic intelligence agencies. The fact that the agencies' leadership remains in place -- despite the revelation of over a decade of unconstitutional surveillance that has poisoned our nation's international relations and undermined our constitutional legacy, self-protecting lies to Congress, the misappropriation of public funds, and documented abuses of these programs facilitating potential domestic violence --renders suspect so-called policy "reforms" that ultimately defer to their interests.
Restoring a legitimate baseline for debate
Skepticism of intelligence agencies should inflect Congress' review of substantive measures to restrain their powers. If domestic surveillance has never helped national security, and the officials in charge of it have lied to Congress, why should the prevailing practice be an appropriate baseline from which to proceed?
The 9/11 Commission confirmed that limited data collection was not the vulnerability exploited by the 9/11 hijackers. Rather, our agencies had information they needed to stop the attacks, but failed to share it among themselves. To that extent, the NSA dragnet is a bait and switch.
Congress should require the agencies to justify their post-9/11 powers from the preceding baseline, rather than the one they've managed to construct through a decade of lies.
Among the over 25 competing proposals pending before Congress, only one was developed to return domestic surveillance to a constitutional baseline: the Surveillance State Repeal Act endorsed by the New York Times. Members of Congress interested in fulfilling their oaths of office should cosponsor it and work to ensure its passage, even while supporting the more meager and resignatory reforms embodied in the amended USA FREEDOM Act.
This article was originally published on the People's Blog for the Constitution and is reprinted here with the author's permission.