Political party honchos, national security bureaucrats, and statists of all stripes must be feeling the tumbleweeds blow past their feet with angst as the storm clouds of reform collect just over the horizon.
The House and Senate are working on a number of bills designed to address public concerns about the NSA’s dragnet surveillance programs. The bills reflect a growing public fear of government surveillance that outweighs the fear of terrorist attacks. They also expose a developing fissure between party heads and rank-and-file members over the extent to which Uncle Sam should be able to act as patriarchal voyeur.
In July, for the first time in Pew Research Center history, more poll respondents expressed concern over civil liberties abridgment by the government (47%) than danger from terrorism (35%). Even more heartening for reform advocates — and depressing for party loyalists — is that the shift in attitudes crosses the political aisle. 43% of Republicans and 42% of Democrats said they were more troubled by government overreach, up substantially from three years ago (25% and 33% in 2010, respectively).
Those numbers are buoying hopes that Congress is on the cusp of a political realignment uniting civil libertarians and progressives against surveillance state excesses. Unfortunately for champions of reform, poll responses can be as malleable as Play-Doh. And public sentiment could just as easily change if another terrorist attack occured, or if the public became distracted by a new season of Dancing With The Stars.
NSA defenders, like Democratic Senator and Senate Intelligence Committee Chair Dianne Feinstein (D-Calif.), are hoping for such public indifference. She recently unveiled her own “change, but preserve” reform bill that offers nothing more than cosmetic adjustments to the current programs. If the bill passes, it could even expand NSA’s power. Her defense of the bill, as usual, can best be summarized as: “scary brown people will blow you up without NSA surveillance.”
Nevertheless, serious reform campaigners are proceeding undaunted. The Intelligence Oversight and Surveillance Reform Act — sponsored by Senators Ron Wyden (D-Ore.), Rand Paul (R-Ky.), Mark Udall (D-Colo.), and Richard Blumenthal (D-Conn.) — is illustrative of the core objections at the heart of the handful of reform efforts Congress is about to take up. At the heart of the bill is the goal of restoring individualized suspicion as a precondition for surveillance of Americans. It would end the bulk collection of Americans’ communication metadata, as well as the “backdoor search” loophole that enables domestic communications to be seized even if they don't belong to the intended surveillance target, among other provisions.
Even though he faces powerful opposition from other members of Congress and the executive branch, Wyden and his cohort do have one compelling ally in their corner: the facts.
The NSA's bulk telephone metadata collection program has been defended as essential because it supposedly helped stop 54 terrorist attacks. Sounds scary, right? Well, it turns out that those numbers weren’t quite accurate — only 13 of the plots "had a U.S. nexus," and in only one of those was the dragnet metadata program centrally involved (i.e., existing law enforcement procedures could have detected the other instances). And even that incident wasn’t a terrorist plot in any real sense of the term. It involved a cab driver who tried to send money to Somalia to help defend his country from a U.S.-backed Ethiopian invasion.
Since the “terrorist” justification falls apart more quickly than a game of Jenga on a paint shaker, perhaps the metadata program is being used for other reasons that the government isn’t disclosing. National security blogger Marcy Wheeler has noted that in 2009 the administration let slip it was using the program not just to locate terrorists, but also to find potential informants. Since metadata can tell an eavesdropper the types of relationships you maintain, such as illicit affairs, blackmailing a target into collaborating with the government seems like a great use of the database. It strains credulity to believe the public would agree, however.
So, is NSA rollback a sure thing? Hardly. But the conditions are ripe. It will require a vigilant citizenry to rally their representatives to the cause of privacy protection. No matter how concerned Americans become over the issue, calls for reform are always at risk of being drowned out in Congress by defense industry cash and howls of “the terrorists are coming!” That’s why it’s up to the media to keep the public informed, and to call out fear-mongers on their bluffs.