With Congress now poised to renew, not renew, or revise the N.S.A.'s bulk metadata program, it's worth thinking about where we would be now if a twenty-nine-year-old contractor for Booz Allen Hamilton hadn't left Hawaii for Hong Kong, and a new life as an outlaw ombudsman.
Were it not for Edward Snowden or someone like him, the N.S.A. would likely still be collecting the records of almost every phone call made in the United States, and no one outside of government would know it. A handful of civil-liberties-minded representatives and senators might drop hints in hearings and ask more pointed questions in classified settings. Members of the public would continue making phone calls, unaware that they were contributing to a massive government database that was supposedly intended to make their lives safer but had not prevented a single terrorist attack. And, on Monday, the government’s Section 215 powers, used to acquire records from hundred of billions of phone calls, among other “tangible things,” would be quietly renewed.
Snowden shouldn’t have been necessary. The Foreign Intelligence Surveillance Court (or FISA Court), which evaluates Section 215 requests, is supposed to be interpreting the law to make sure that government surveillance doesn't go outside of it. Congressional intelligence committees, which review the activities of the N.S.A., are supposed to be providing some oversight. The N.S.A. itself reports to the Department of Defense, which reports to the White House, all of which have dozens of lawyers, who are all supposed to apply the law. The government, in other words, is supposed to be watching itself, especially in matters of national security, which are, by necessity, shielded from daylight. The fact that it took thirteen years, and one whistle-blower, to expose a program that is conclusively ineffective and, according to one federal appeals court, illegal, points to a problem much larger than any one program. It suggests that claims about what is necessary to prevent the next terrorist attack are too sacrosanct to require evidence. As the debate over Section 215 has played out over the past two years, it has become clear that the punishments for exaggerating the efficacy of surveillance programs and downplaying their privacy implications are just about nonexistent.
The government enshrouds the details of its surveillance programs in a technical vocabulary (“reasonable articulable suspicion,” “seeds,” “queries,” “identifiers”) that renders them too dull and opaque for substantive discussion by civilians. As one Pentagon handbook put it, “one can be led astray by relying on the generic or commonly understood definition of a particular word.” There is a kind of legal subversion at work here. Broad and clearly worded laws, including the Fourth Amendment, are being undermined by a raft of quasi-legal documents, most of them too long, narrow, and boring to read—that is, if anyone were allowed to read them in full. Instead of being named for what they actually do, programs are named for the subsections of the laws that are supposed to authorize them, whether or not that authority is actually present in the language of the law. With all the attention being paid to Section 215, named for a part of the Patriot Act, which does not contain the words “bulk,” “phone,” or “metadata,” it’s easy to forget that the program is just one piece of the intelligence community’s legal armory. Little is known about how other authorities, including Executive Order 12333, which some consider the intelligence community’s most essential charter, are being interpreted to permit spying on Americans. And a redacted report, released last week by the Department of Justice’s Office of the Inspector General, hints at how much we still don’t know about Section 215. Nearly two years into the congressional debate over the use and legality of Section 215, the report provides the first official confirmation that the “tangible things” obtained by the F.B.I. through Section 215 include not just phone metadata but “email transactional records” and two full lines of other uses, all of which the F.B.I. saw fit to redact.
Some have argued that the current surveillance regime isn’t as bad as the activities of Henry Kissinger, who ordered wiretaps on his rivals during the Vietnam era, or of J. Edgar Hoover, who used the F.B.I. to authorize the covert infiltration of left-wing groups and terrorized Martin Luther King, Jr., with anonymous threats. Those abuses led to the lengthy investigations of the Church Committee, and the current system of judicial and congressional oversight. It’s true that the modern surveillance regime is less about the passions of individuals and more about the tendencies of institutions. But those tendencies—especially the belief that national security can trump the plain English of the law—will likely make it hard for this generation to achieve meaningful surveillance reform. This week’s debate over Section 215 should be the beginning of a much larger conversation.
