While the section specifically notes the FBI, it also became justification for the surveillance court to grant authorities to the NSA. This is what allows the NSA to collect information on nearly every phone call placed within the United States and much of the digital data held by Internet companies. And from the start, this was intended to be a secret activity, not disclosed to the public, or indeed, other parts of the government. A portion of Section 215 reads: “No person shall disclose to any other person…that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”
Across four administrations and both political parties, the NSA is doing what it has done since 9/11. Regardless of public debate, aggressive reporting and congressional hearings, nothing has changed. Given that, does a current public debate over privacy and security have any chance of impacting the government’s activities?
These pieces of legislation remain the legal justification for the NSA’s activities. President Obama reauthorized the Patriot Act in 2011 and signed a five-year extension of the FISA Act in 2012.
Does a Public Debate Matter?
In the aftermath of 9/11, the Bush Administration took expansive liberties in intelligence gathering. Despite candidate Obama’s opposition to the Bush Administration’s secrecy and government intrusion on the grounds of national security, the current president has in many ways continued what his predecessor started. Across four administrations and both political parties, the NSA is doing what it has done since 9/11. Regardless of public debate, aggressive reporting and congressional hearings, nothing has changed. Given that, does a current public debate over privacy and security have any chance of impacting the government’s activities? Does it even matter?
In a recent speech, President Obama said of the NSA programs: “You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience.”
Total security is clearly impossible, given examples like the Boston Marathon bombing and the near-successful attack by Umar Farouk Abdulmutallab (the so-called Underwear Bomber) aboard a flight over Detroit in 2009. And infringements on the Fourth Amendment could hardly be characterized as a mere “inconvenience.” Beyond that, however, the American people were never given the opportunity to weigh in on the balance between security and privacy, though it seems that public sentiment (at least for now) is irrelevant to the government’s actions.
Criticism from reputable sources seems to bounce off government resolve like gnats against a windshield. Most recently, Rep. Jim Sensenbrenner (author of the Patriot Act) said that the NSA (and apparently the FISC as well) is not interpreting Section 215 the way it was intended. In an amicus brief submitted as part of the American Civil Liberties Union’s (ACLU) suit against the NSA’s domestic phone records collection, Sensenbrenner wrote, “I stand by the Patriot Act and support the specific targeting of terrorists by our government, but the proper balance has not been struck between civil rights and American security.”
Boston Marathon bombers Tamerlan Tsarnaev and Dzhokhar Tsarnaev. The Boston Marathon bombings demonstrated that total security is impossible to achieve. FBI photo
Other organizations and individuals have backed the ACLU’s suit, but the civil liberties group has unsuccessfully tried several times before to sue the government over surveillance activities. Will this time be any different? The DOJ is looking for ways to have the case delayed or rejected. Even if the case is successful, will it have any meaningful impact on the kind of intelligence the government gathers?
The previous PSP came under direct legal review and close criticism, but when faced with opposition and public scrutiny, the executive office and the intelligence community just found another way to do exactly what they had been doing. To be sure, America’s intelligence community has been critical in the fight against terrorism and the effort to protect the country and its interests. The NSA’s data gathering likely contributed to this. The point is not that security is unimportant or even that privacy is more important. Rather, doesn’t the American public deserve a frank and open discussion about what is an acceptable compromise between privacy and security? Must we simply trust the government to do what is right?
The point is not that security is unimportant or even that privacy is more important. Rather, doesn’t the American public deserve a frank and open discussion about what is an acceptable compromise between privacy and security? Must we simply trust the government to do what is right?
Former NSA chief Gen. Michael Hayden was correct in noting recently that the United States “is not ancient Athens; this is not a direct democracy. It is a representative democracy.” Citizens must rely on Congress to make critical decisions that reflect their desires, and because every-day Americans do not have access to classified information, the voting public may not appreciate the decisions made by their better-informed representatives. Perhaps the NSA’s activities are absolutely necessary for a secure America. Perhaps some sacrifice of liberties is needed.
This could be a rational assumption if there was no question that the NSA was following the letter of the law, if the agency consistently adhered to the authorization granted by the surveillance court. Unfortunately, leaked and declassified documents reveal this is not the case. The next installment of this series looks at revelations that the NSA misled the FISC on more than one occasion. Perhaps the public debate on privacy and security is necessary after all.