Members of Congress sensitive to constitutional limits on executive power have introduced no fewer than a dozen bills to curtail NSA spying. Most of them would do nothing to address the most recent disclosures from journalist Glenn Greenwald. Until the full scope of NSA spying is revealed to the public, congressional remedies for constitutional violations will remain insufficient.
Unfortunately, while Snowden’s disclosures may enable further facts to finally emerge about NSA abuses, transparency is generally waning despite President Obama’s rhetorical commitment to it.
The latest revelations of NSA domestic spying include new information about the government’s ability to intercept social network communications, email metadata and content, and other online content–all without a judicial warrant.
Beyond the particular details about Xkeyscore, however, lies a more disturbing implication: neither the press, nor the public, nor even Congress have any idea of the full extent to which the NSA is spying on Americans.
And if the latest results from the war on whistleblowers is any indication, each of these sectors will remain in the dark going forward, executive abuses will continue to mount, and our system of constitutional checks & balances will creak as executive secrecy continues to impede review from either Congress or the courts.
Congress legislating in the dark…
The same day that the Guardian revealed the NSA’s's ability to casually intercept online communications even in social networking applications like Facebook, Senate intelligence committee chair Dianne Feinstein (D-CA) revealed how little she knows about the operations of an agency she is charged to oversee.
Despite being described by the Washington Post as “chief congressional defender of the surveillance program to skeptical colleagues and critics who say it’s Big Brother run amok,” she wrote an op-ed in the Post pledging to “work with…the Senate intelligence and judiciary committees to consider changes to the NSA call-records program in an effort to increase transparency and improve privacy protections.”
While her interests in transparency and privacy are laudable, they are a day late, a dollar short, and dramatically out of step with her overwhelmingly principled (either libertarian or progressive, but rarely moderate) constituents. Most striking, however, are the gaps pervading Feinstein’s analysis.
First, she insists that NSA intelligence collection is limited to meta-data, and emphasizes the controls supposedly limiting access to the vast mountains of data collected under a particular program, Section 215 of the PATRIOT Act, implicated by the first document revealed by Snowden.
But that’s only a single program. The PRISM program, which was also revealed weeks ago, explicitly captures content, as does the XKeyscore program revealed just yesterday. Feinstein downplays the extent of surveillance even while calling for more transparency. As the longtime chair of the relevant Senate oversight committee, she should have a better grip on the facts.
At one point, Sen. Feinstein absurdly claims to “know of no federal program for which audits, congressional oversight and scrutiny by the Justice Department, the intelligence community and the courts are stronger or more sustained.”
The Senator’s self-assurance aside, yesterday’s Guardian article revealed that even corporate contractors were allowed access to real-time social network monitoring with neither executive nor judicial oversight of any kind, not even by the rubberstamp FISA court. If this is the zenith of transparency across the federal government, it would be interesting to learn what the Senator thinks secrecy looks like.
Other members of the Senate intelligence committee, such as Sen. Ron Wyden (D-OR), have posed tough questions to executive officials, only to be stonewalled by the administration and blocked from reviewing key facts that would help reveal the extent of domestic NSA surveillance.
Last week, in the first vote on domestic surveillance powers since the Snowden leaks, the House came only six votes short of defunding the NSA’s domestic’s spying activities entirely.
The surveillance state staved off a public vote of no confidence with a margin of just over 1%. And that was before the latest revelations of online and email surveillance even beyond what Congress knew about at the time.
The PATRIOT Act has never been popular among Americans despite its recurring reauthorization from a compliant Congress. Over 400 cities and towns across the country enacted resolutions opposing PATRIOT powers, in addition to eight states, all representing a wide diversity of political cultures.
Would Congress have ever approved these powers had their more recent abuses been anticipated years ago? If recent comments from PATRIOT’s author offer any indication, the answer is no.