Regarding the Politics of Surveillance Reform

Since 9/11 the spectre of 'terrorism' and the ethos of what I term 'Everwar' and the permanent state of national emergency have permeated the Congressional and national political agendas. Over the years, starting with the USA 'PATRIOT' Act rushed to passage in October 2001, a variety of legal, procedural and technical tools, processes, and interpretations  -- some quite controversial -- were enacted or accepted in order to "protect the homeland" from the allegedly existential threat of terrorism.  

In less than a week, some of those 'tools' -- specifically, Section 215 of the USA 'PATRIOT' Act -- are set to expire unless reauthorized by Congress. Accordingly, there is no shortage of congressional leaders, presidential candidates, and law enforcement officers of every stripe taking to the airwaves with grandiose statements demanding these 'tools' remain part of the American counterterrorism arsenal or attacking civil liberties supporters challenging their use. The general tenor on these issues in some Washington circles suggests to less-critical observers that absent these tools, on June 1, 2015, terrorists will suddenly start raining down on the United States with no prior warning. But if that's not enough, there's always threat conflation: in discussing Section 215's future, Senator Jim Inhofe told an Oklahoma radio station that “countries like North Korea, Iran, Iraq, Syria, all of them are on the path to getting bombs and delivery systems that would reach the United States of America and could have the effect of killing everyone who is listening now....when you stop and think and make a choice between having a complete city bombed out and privacy, my choice is easy.”  The rhetoric from some surveillance apologists has become ridiculous!

Facing this alleged existential crisis, what does Congress -- in this case, the Senate -- do? In the absence of no clear consensus within that body (let alone with the House) on a way forward, its leadership throws a few half-hearted proposals into consideration in the wee hours of Saturday morning before adjourning for a scheduled recess period so senators ostensibly can go campaign in their home districts. However, in another last-last-last-ditch attempt to prevent a sudden plague of terrorists from raining down on the country on June 1st, they'll return on May 31st to resume deliberations and potentially resolve the matter.

The last week of the academic year is a chaotic time for both faculty and students, but the circus-like atmosphere in Washington over the expiration of Section 215 of the USA 'PATRIOT' Act have been an interesting, if not pathetically depressing, diversion from my end-of-year activities. However, it has allowed me to observe and analyze the situation, potentially identifying some items not otherwise mentioned in the mainstream media.

1) 'Importance' depends on whom you ask.  The new Attorney General recently said that Section 215 was "very important" in building some of their cases.  Yet her comments run contrary to the Justice Department's own Inspector General's report indicating that FBI agents did not identify any major case developments resulting from the use of Section 215 capabilities. Moreover, in a 2013 decision that NSA's bulk metadata program was likely unconstitutional, district Judge Richard Leon noted that "The Government could have requested permission to present additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA's surveillance programs have prevented fifth-four terrorist attacks, no proof of that has been put before me." Additionally, following the Snowden disclosures, both the President's adhoc (Surveillance) Review Group and the Privacy and Civil Liberties Board (PCLOB) both found no evidence that Section 215 collection capabilities made a significant difference to law enforcement investigations. Nevertheless, Senate Intelligence Committee Chairman Richard Burr steadfastly believes that "The program as designed is effective, and members are reluctant to change things that are effective just because of public opinion."  

2) Hold on - we still need to talk about this.  The USA 'PATRIOT' Act was rushed into law less than 45 days after the 9/11 attacks by a shell-shocked Congress and without significant discussion.  Indeed, many Congressfolks admitted not having read the final (and in some ways substantially changed) version of the proposal before voting on it. Since the 2005 disclosure of surveillance programs by the New York Times, there have been numerous hearings, conferences, papers, articles, and public discussions debating the matter, both partisan and otherwise. The Snowden disclosures of 2013 reignited those debates, as has impassioned attempts by legislators to end bulk collection (the 'Amash Amendment' to the Defense Appropriations Act 2013) and the ongoing efforts to pass the USA 'FREEDOM' Act not once, but twice.  Yet in the face of expiring Section 215 powers and the Senate's refusal to accept the latest (and more watered-down) USA 'FREEDOM' Act, Senate Majority Whip John Cornyn wondered “how we have the kind of fulsome debate that is going to be required on NSA without passing a temporary extension” with several right-of-center news organizations echoing that sentiment. Even in the waning hours before their Memorial Day recess, Senate leaders pushed for multi-year, then multi-month, then several multi-day extensions to Section 215 to allow more time for public debate on surveillance matters.  All extensions failed.

3) It's not illegal if we think it isn't.  On May 7 the Second Court of Appeals declared the NSA's telephone records collection program conducted under Section 215 is illegal. Although that decision was applauded by civil liberties proponents, surveillance apologists in Congress refuse to acknowledge the legal decision: Senate Majority Leader Mitch McConnell continued to press for a multi-year extension of the capabilities (despite its new illegality) and other legislators simply ignored the Court's decision. In a joint op-ed for Fox News that included substantial threat conflation, Senator Tom Cotton and Rep. Mike Pompeo noted that “Contrary to irresponsible rumors, the [bulk surveillance] program is lawful, carefully monitored, and protects personal privacy. The program does not conduct mass surveillance of American citizens—or any surveillance at all."  Is the 2USCoA really a source of irresponsible rumor-mongering?

4) Polls are meaningless - unless they support my position.  This is a fairly common thing in politics, and even respected polling organizations get caught up in such perceptions. The recent Pew survey of Americans' views on privacy shows a wide range of opinions and perspectives on privacy issues generally, even post-Snowden. However, on the matter of government surveillance, 65% of respondents believe there are not adequate limits on data collection. Nevertheless, Senate leaders want to keep the status quo in effect, because they feel it's the right thing to do.  (Disturbingly, Pew reports that 62% of those polled have heard only "a little" about the controversial government's monitoring programs -- which is surprising given the amount of media coverage on these matters since the 2013 Snowden disclosures.)

What does this all mean for the politics of meaningful surveillance reform? Over the years, much has been written or said about the legal, technical, and practical merits of surveillance and privacy. Civil liberties advocates and other reform-minded individuals continue to strive for meaningful change (or resistance) where possible on areas they see as an excessive application of governmental power in society.  And, admittedly, there probably are other surveillance techniques in-place that have not yet been disclosed but likely would be deemed controversial by American citizens. However, regardless of what is or is not known about surveillance programs in the United States, I (cynically) believe much of the resistance of political and law enforcement officials to any slight, let alone meaningful, reform of domestic surveillance capabilities is the result of three overarching interests:

1) Political job security. No elected official of any party wants to say they didn't "do all they could" on matters of national security -- and especially after an incident or when the potential for an incident remains in the public mind.  To that end, officials will err on the side of reactionary caution and embrace practically anything that can be seen (or marketed to citizens) as helping keep them safe from any number of real or perceived threats, regardless of its effectiveness or (in the case of Section 215) its legality.  Fear of being held accountable by a misinformed electorate if the worst should come to pass --- what else can explain the dogmatic views of Senate leaders in their ongoing attempts to reauthorize Section 215?  The only way to meaningfully reform national policy (and especially defense procurement or security policies like USA 'PATRIOT') is to reform the electoral process by enacting term limits for legislators -- but no politician is going to change the system that puts them in office.  Thus, they are trapped not only by special interests funding their next campaign, but by an unwillingness to "stick their neck out" and take hard decisions that they might have to defend later on.

2) A national aversion to risk.  Closely tied to #1, there remains a deep-seated aversion to anything bad happening in the country, ever. Unfortunately, the United States tends to address risk in ways other than through rational, objective analysis.  For example, much of the risk-reward analysis used in national security circles since 9/11 tends to be skewed toward what Ron Suskind called the "One Percent Doctrine" -- namely, that if there's a 1% chance of something bad happening, we must treat it as thought it was a 100% certainty.  Accordingly, since 9/11, American society has become conditioned to be completely fearful of any number of potential terrorist risks despite other persistent and perennial sources of trauma and death in the country such as from guns, heart disease, cancer, or drunk driving.   Therefore, politcians are eager to demonstrate their 'support' for protecting the country and "doing all they can" toward that noble goal.  Consequently, this leads to  philosophical and political debates over "just because we CAN do something doesn't mean we SHOULD necessarily do it" regarding emerging security capabilities and policies, with the former typically winning out in the near-term.  One current example is the federal government's renewed desire to obtain an operationally if not also mathematically impossible "good guys only" backdoor to strong encryption technologies in order to facilitate easy electronic communications surveillance by the government to 'protect' its citizens.

3) Boys/Girls With Toys. Since 9/11, federal, state, and local law enforcement have been the beneficiaries of significant new assets, ranging from tactical mine-resistant armored vehicles and helicopters to grenade launchers, body armor, IMSI catchers ('Stingrays') and a network of poorly-monitored 'intelligence fusion centers' that produce dubious intelligence 'analysis'.  Such assets, once gained, are not easily relinquished -- local police have loudly condemned the president's recently announced plans to de-militarize America's local law enforcement departments by removing much of the overt military hardware they've accumulated over the years.  Federal law enforcement is no different when it comes to giving up or no longer having broad powers and capabilities such as those under Section 215 -- even though it's been repeatedly shown not to have been helpful in investigations, FBI Director Comey continues lobbying for its renewal.  This is not surprising, since the USA 'PATRIOT' Act, intended as a response to 9/11 terrorism, has been used in other non-terrorism related investigations since its enactment.  By extension, an unwillingness to relinquish authorities, capabilities, or powers may well explain why fifteen years after the 9/11 attacks, America is still operating under a Presidential Declaration of National Emergency. More locally, the number of towns with license plate reader cameras on every street corner continues to grow -- is there really such an epidemic of stolen cars that warrants (ha!) this level of regional surveillance, or is it just a convenient narrative to tell communities as more units are deployed?  Again, once a law enforcement capability or government authority is received, it rarely gets relinquished easily.

In terms of Section 215's future, the Senate is due back in-session on May 31 to deliberate again over its renewal or expiration. Given the underlying factors playing out in the minds of legislators and other officials over surveillance capabilities and national security, It's fairly hard to predict an outcome here:  Either Section 215 will expire due to procedural gridlock in the Senate, there will be an eleventh-hour dead-of-night deal to reauthorize it (remember, terrorists!) or a few more members of the majority will support the current (if not made more) watered-down USA 'FREEDOM' Act if it is brought up for another vote, pass it, and send to the president's desk as a demonstration of bipartisan surveillance reform.  Although some believe Section 215 is on death's doorstep with no hope of being saved, I will not believe that until it actually happens -- if it happens.

We'll see on 1 June.

 

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