What our

mass surveillance debate gets wrong

By Daniel Schuman


Debate is swirling in Washington about the sunset of the USA PATRIOT Act’s section 215, which the administration has twisted to support mass surveillance, but the focus of the conversation reinforces the narrative of national security hardliners. The question should not be whether to reauthorize section 215, which even its author says was never intended to allow mass surveillance. That’s a no-brainer. The question is whether to investigate and root out the pro-surveillance agenda that sprouted after 9/11 and has borne the strange fruit of mass surveillance, secret law, secret courts, and unchecked executive power.

In some ways, this is a tale of seduction and corruption. The Intelligence Community has long held out the allure of secret knowledge and quick fixes to national security problems that has entranced presidents and members of the House and Senate intelligence committees. On the other hand, they claim increased power is the only way to reduce danger to Americans. The record shows, however, that the intelligence community often cannot deliver what it promises and its actions can create the dangers policymakers seek to minimize.

These dangers have only been exacerbated by the blank check given to them by the Bush administration and endorsed by the Obama administration that allows them to operate at and beyond the edge of the law. For example, opinions issued by the Department of Justice’s Office of Legal Counsel have blessed all sorts of illegal behavior, including torture, only by twisting the law and Constitution out of shape and making sure anyone who could complain about the opinions—even Congress—was out of the loop or kept out of court. Similarly the Foreign Intelligence Surveillance Court, originally charged with deciding whether to approve wiretap warrants, created an expansive body of secret law that approved mass surveillance and sharing of personal information among members of the Intelligence Community. In a democracy, the law is not supposed to be a secret and these decisions should be up for public debate.

The greatest check on unlawful executive branch behavior, Congress, is out of the loop. Often times, the Executive branch fails to share (or selectively shares) crucial information about—or even the existence of—its activities with its Congressional overseers. Sometimes members of the Executive branch flat out lie. For its part, Congress has weakened its ability to get at the truth and its Intelligence committees largely have abdicated their oversight roles. In fact, some members of Congress who are supposed to hold the Intelligence Community to account have an odd version of Stockholm syndrome where they sympathize more with the eavesdroppers than ordinary Americans. Congress must rethink how it does oversight.

The Executive branch has even taken it upon itself to assert and interpret its Constitutional powers to preclude a check by the other branches in national security matters. Many, including a whistleblower who made his concerns public, believe Executive Order 12333 is used by the administration to engage in mass surveillance. Breathtakingly, the administration in turn says EO 12333 actually is a voluntary limit on the Executive Branch’s constitutional powers, which may be broader, and Executive Order limits can be waived at will by the president. Where does it say this? In a secret Office of Legal Counsel opinion, of course.

We have a troubling set of circumstances. Secrecy is used to buttress secrecy; the constitutional checks-and-balances have become unraveled. And yet we spend time debating how much to pack into legislation addressing section 215, the elimination of which would not even end mass surveillance. Even worse, some members of Congress, such as Senate Majority Leader Mitch McConnell, have introduced legislation to leave section 215 alone for the next half decade. We do not impugn the hard work of many members of Congress and congressional staff who have worked feverishly to fix section 215, even the national security die-hards, but the unnaturally narrow debate says volumes about the blinders Congress has placed on itself.

This is why we endorsed a letter, signed by a bipartisan array of 60 non-profit organizations, businesses, and whistleblowers, that calls for comprehensive reform. We need to know what has been done in our names. We must empower Congress to perform its oversight responsibilities and protect whistleblowers when they expose illegality. We must end secret law and open up secret courts. We must end domestic mass surveillance, no matter under what authority it takes place. These are the crucial issues. This is the debate worth having.

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