Privacy SOS

It’s time to end emergency rule in the United States

The best chance we’ve got to stop the NSA’s dragnet surveillance will be introduced in congress by the very same man who put forward the legislation that created the problem. The USA Freedom Act is Representative Jim Sensenbrenner’s response to the Edward Snowden disclosures, which revealed that the NSA was using his USA Patriot Act to do very naughty things. The republican congressman has said it is time "to put their metadata program out of business" — his bill will do that, and more.

The USA Freedom Act will make three important fixes to current law. It will end bulk metadata collection; provide greater transparency and oversight over NSA surveillance; and close the ‘reverse targeting’ loophole that allows the NSA (and probably also FBI) to warrantlessly search through data harvested under programs like PRISM, even if they are looking for US person communications.

The Sensenbrenner bill is the first comprehensive, realistic proposal in what has the potential to be a wave of reforms to undermine the out of control surveillance state. It will go a long way towards restoring due process and providing baseline checks and balances to counter the lawless security state. But something nasty this way comes, too. We don’t yet know exactly what it will look like, but NSA apologists on the intelligence committees are probably going to introduce a competing piece of legislation sometime before the winter break. That bill would likely worsen the excesses of and entrench the surveillance state.

It’s up to us to ensure that the bad bill goes nowhere, and the good one is signed into law.

It won’t be easy, but public support for reform and the close Amash/Conyers vote give us ample reason to think a good outcome is possible. Resistance is likely to come from members of the intelligence committees, but there are some even there who want reform and will fight hard for it. And then there’s that other institution, which was largely sidelined in the aftermath of the 9/11 attacks. The judiciary committees will also play a role in shaping how surveillance reform happens — or doesn’t. 

The battle for power and supremacy between the judiciary and intelligence committees has been largely settled, with intelligence coming out on top. But in this new environment, in which people are more concerned about the government’s assaults on our civil liberties than about terrorist attacks, that can — and should — change. While the intelligence committees were established to provide oversight to keep in check the secretive spy agencies, we’ve seen them morph into institutions that largely — with obvious exceptions — see themselves as part of the community they are meant to investigate and hold accountable. 

While the judiciary committees hold most of their hearings in public, the intelligence committees mimic the secrecy and general shadiness of the spy agencies they are supposed to monitor. Part of the problem is that being in the "cool kid secret crew" and getting access to Top Secret materials has the effect of making members of the intelligence committees susceptible to the anti-democratic propaganda put forth by agencies like the NSA. Being on the inside therefore has a profoundly negative impact on the 'oversight' the intel committees are supposed to perform. One only has to look to the public comments of people like Senate Intelligence Committee chair Dianne Feinstein to see where this leads. Instead of serving as a public watchdog to hold the NSA accountable, Feinstein serves as the NSA's bulldog to defend its programs to an irate public.

That has got to stop. A wonderful byproduct of these NSA debates and reform efforts would be for a renaissance in which the judiciary committees reassert their rightful role as a public check against secretive government power. The intelligence committees have reigned in the shadows for too long. They, and not just the NSA, need to be checked.

The competing reform efforts and tension between the judiciary and intelligence committees raise vital questions that, more than a decade after 9/11, the American public needs to confront head on.

What, if anything, should the government keep secret from the public? What does the phrase ‘national security’ mean where it relates to democratic oversight and due process? Should we continue the ‘war on terror’ state of exception, or reinvigorate our domestic, civilian institutions concerned with the rule of law, and governed by democratic values like openness and transparency?

In short, do we want to continue treating the world (including our own country) as a battlefield, or are we ready to end the state of exception and get on with our lives in a freer society? 

Over the next six weeks, two competing proposals will be debated in congress and in the media. One will seek to entrench the power of the national security state, operating under the dangerous illusion that the world is a battlefield and that our right to be left alone is a quaint anachronism which threatens our security in the Forever War. The other recognizes that, while legitimate threats exist, the greatest threat we face is to basic principles of justice and fairness, and to the possibility of open society itself.

Thanks to Edward Snowden, we are at a major fork in the road. For ourselves and for our children, let us choose wisely — and fight like hell until we win.

© 2021 ACLU of Massachusetts.