For more than a decade, the United States government has been erecting a high-tech surveillance state. Now, U.S. lawmakers appear to be readying to start chipping away at the Leviathan they allowed to grow—and, in some cases, helped to build.
The Patriot Act, legislation that vastly expanded government surveillance powers, sailed through the House of Representatives in the wake of the 9/11 attacks with overwhelming bipartisan support. In the Senate, it was so popular that only a single senator voted against it. After it emerged that then-president George W. Bush had gone even further than surveillance laws allowed, by wiretapping Americans’ international calls without court warrants, a Democratic-majority Congress—with Sen. Barack Obama’s vote—eventually passed a federal statute that legalized a form of Bush’s surveillance program. As President, Obama has repeatedly signed into law extensions of eavesdropping provisions.
But that bipartisan post-9/11 consensus may now be dissolving. A national rethink of security and civil liberties has begun, driven by disclosures of the extent of government surveillance and data-mining of domestic communications by former National Security Agency (NSA) contractor Edward Snowden. The extraordinary leaks happened to come at a time of growing distrust of the Obama administration by Republicans, fuelling the rise of the GOP’s increasingly assertive libertarian and Tea Party wing.
As Snowden’s leaked details of one surveillance program after another have been published, public attitudes shifted—particularly those of Republicans. In a July poll by Quinnipiac University, 45 to 40 per cent of U.S. voters said the government’s anti-terrorism efforts go too far in restricting civil liberties—a dramatic reversal from a poll in January 2010 that showed 63 per cent believed the government’s efforts didn’t go far enough. Some of the largest reversals came from Republican voters. In 2010, 72 per cent of them said the government was not going far enough; in July, only 46 per cent still held that view.
As Americans reassess the trade-offs between security and civil liberties, some civil-libertarian critics see an urgent opportunity. “If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we will all live to regret it,” said Ron Wyden, a Democratic senator from Oregon and leading critic of the surveillance policies. “The combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action could lead us to a surveillance state that cannot be reversed.”
Concerns among Republicans are not just being driven by Snowden’s cache of leaks detailing secret programs—including the revelation that the NSA is storing logs of every domestic phone call, and details about its PRISM program, which collects content from providers like Google. They are also fuelled by unrelated suspicions of abuse of government power. Allegations that the Internal Revenue Service (IRS) had singled out for extra scrutiny Tea Party groups seeking tax-exempt status, and concerns that federal health care reform will give bureaucrats greater access to personal health information, are adding to an atmosphere of distrust.
“People are beginning to understand the amount of information the government has at its fingertips, and beginning to understand the way the government can abuse the information,” said Patrick Toomey, a national security fellow at the American Civil Liberties Union.
Congressional confidence in the NSA took another blow when the director of National Intelligence, James Clapper, admitted to giving a “clearly erroneous answer” when he denied to a Senate committee that the NSA collects any data on millions of Americans.
The change of heart on Capitol Hill was on display in late July when a Tea Party-backed Republican congressman from Michigan, Justin Amash, teamed up with a liberal Democrat, John Conyers, to push an amendment that would have effectively ended the NSA’s ability to indiscriminately vacuum up Americans’ phone-call logs. Speaker John Boehner asked Republicans to vote against it, and Democratic leader Nancy Pelosi made the same demand of her party’s members. The White House spoke out against it, and the head of the NSA, Gen. Keith Alexander, was dispatched to Capitol Hill for hours of closed-door briefings aimed at persuading lawmakers that the program was essential.
Nonetheless, a surprisingly large number of backbenchers from both parties revolted against their leadership and voted for the amendment, with some Republicans even making explicit their concerns awoken by the IRS controversy. “We’ve seen what Big Government looks like,” said Montana Republican Steven Daines in the floor debate. “We must always be vigilant and guarded against the overreach of government power.”
Liberal Democrat Jerrold Nadler of New York said, “Congress never authorized this type of unchecked, sweeping surveillance of our citizens.” That view was echoed across the aisle by James Sensenbrenner, a Republican congressman from Wisconsin and former chairman of the House Judiciary Committee, who was an architect of the Patriot Act.
In the end, the amendment was narrowly defeated on a vote of 205 to 217. But that vote was shockingly close, given the opposition by leaders of both parties, making clear that momentum was amassing for reform. There are 20 or so surveillance-reform bills floating around Capitol Hill and the chairs of several committees said they will take up reform legislation when Congress returns.
The reform efforts fall into two main categories. First, there is reining in what information can be collected on U.S. citizens: stopping the bulk gathering of phone-call “meta-data” (such as numbers dialled and time of calls), and limiting probes only to those specifically under investigation.
The second area for reform is the secretive national security court that was set up to approve individual warrants for counterterrorism or espionage investigations, but which has in recent years been issuing secret rulings about the meaning of surveillance laws and constitutional privacy rights. It consists of 11 federal judges assigned by the Supreme Court chief justice, John Roberts. An appointee of George W. Bush, he has stacked the court with 10 fellow Republican appointees. Their proceedings and decisions are rendered in secret, after hearing only the government’s arguments.
Seeking to defuse the growing backlash, Obama vowed in a press conference on Aug. 9 to work with Congress to reform the law on the collection of telephone records. He also announced he would add lawyers to argue privacy and civil-liberties issues before the surveillance court, and would declassify more information on NSA activities to counter the public impression “that somehow we’re out there, willy-nilly, just sucking in information on everybody and doing what we please with it. Now, that’s not the case,” he said. Obama said an outside group of experts would report to him by the end of the year on more ways to prevent abuses. But he would not stop the actual data collection. “I haven’t evolved in my assessment of the actual programs,” Obama said. “They are worth preserving.”
While the prospects for reform look brighter than ever, the sudden civil libertarian impulse is drawing a backlash from those who say the measures are necessary to keep the country safe.
“Have 12 years gone by and our memories faded so badly that we’ve forgotten what happened on Sept. 11?” asked Michael Rogers, a Republican congressman from Michigan. And a war of words broke out between two potential Republican presidential candidates who are eyeing a run in 2016. “As a former prosecutor who was appointed by president George W. Bush on Sept. 10, 2001, I just want us to be really cautious, because this strain of libertarianism that’s going through both parties right now and making big headlines, I think, is a very dangerous thought,” said New Jersey Gov. Chris Christie at a security conference last month. Asked about Sen. Rand Paul, a leading voice among Republican libertarians, Christie said, “I want them to come to New Jersey and sit across from the widows and the orphans and have that conversation. I’m very nervous about the direction this is moving in.”