Congress Challenges the NSA

July 25, 2013 Topic: The Presidency Region: United States Blog Brand: Jacob Heilbrunn

Congress Challenges the NSA

While the administration accedes to its intelligence leaders' preferences, the Amash amendment shows unrest in Congress.

Edward Snowden is winning. He may be holed up in a transit lounge in Russia, but Snowden, view him as a traitor or hero, is having a profound effect on the debate in America over the extent of spying conducted by the National Security Agency. The most telling sign is the House’s rejection Wednesday of a bill impeding the agency’s collection of phone records by a vote of 205-217. The interesting thing is not that the bill, which was drafted by Rep. Justin Amash and Rep. John Conyers, Jr., failed. It is how close it came to passing.

Only a furious effort by the Obama administration and the Republican leadership, including John Boehner, ensured that it did not. Here was true bipartisanship but perhaps not in the service of a greater goal, or at least one that mounting numbers of Americans, worried about the intrusiveness of federal government spying efforts, are likely to applaud. Lawmakers such as Jerrold Nadler who have long been critical of the NSA and the expansive counter-terrorist measures instituted after September 11 are seizing the opportunity to press their case with renewed vigor; others like James Sensenbrenner, one of the authors of the Patriot Act, say that it is being contorted to justify policies they never envisioned. Revulsion over elastic interpretations of surveillance by the government is prompting Democratic and Republican lawmakers to revolt.

President Obama is clearly hopeless when it comes to this issue. He doesn’t seem to challenge the panjandrums of the intelligence services, but reflexively accedes to their demands. For whatever reason—passivity, cravenness, fear?—the man who once voiced anger and skepticism about the excesses of the Bush administration’s approach to civil liberties has become complicit with the vast bureaucracy that purports to defend American liberties even as it undermines them. Yes, the balance between liberty and surveillance will always be a treacherous one. But we know that when the government is scooping up every telephone record that there cannot even be a pretense of balance but, rather, the attempt to construct an omnicompetent state that vigilantly scrutinizes the behavior of the most innocuous citizen. Professor David Bromwich of Yale University, one of our most trenchant critics of the sprawling apparatus that has arisen since September 11, notes that the Obama administration is endorsing a policy of snatching up private information that can be likened to stocking a vast fishpond:


The new protocol allows the government to vacuum up the entire pond, while preserving a posture quite innocent of trespass, since it means to do nothing with the contents just then. The test comes when a discovery elsewhere calls up an answering glimmer of terror or a terror-link from somewhere in your pond; at which point the already indexed contents may be legally poured out, dissected and analysed, with effects on the owner to be determined.

As James Bamford shows in the August 15 issue of the New York Review of Books, the government has, more or less, been lying about its efforts to fill that pond. After September 11, the Bush administration decided to flout the Foreign Intelligence Surveillance Court. According to Bamford, it “decided to illegally bypass the court and began its program of warrantless wiretapping.” At the same time, George W. Bush announced in 2004, “Anytime you hear the United States government talking about a wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.” Since then, misleading statements from key figures have proliferated. General Keith Alexander of the NSA declared at an Aspen Institute conference, “To think we’re collecting on every US person…that would be against the law.” Snowden's documents remind us that this is not true. Yes, there are genuine threats against America. But it is statements such as Alexander's that induce a sense of vertigo—the sense that America's leaders are misleading the public rather than telling the truth about the scope and nature of their own work, not to mention the number and gravity of the plots that they boast about having uncovered.

There is not necessarily anything consciously nefarious about the efforts of the intelligence agencies to expand their reach and influence. If you want to get a glimpse of what the government is up to then you apparently need to travel to a nine-story building at 611 Folsom Street in San Francisco. There AT&T has its regional switching center and there in 2003 the NSA, Bamford writes, “established a “secret room…and filled it with computers and software from a company called Narus,” which specializes in “equipment that examines both the metadata—the names and addresses of people communicating on the Internet—and the content of digital traffic such as e-mail as it zooms past at the speed of light.” The sense one derives from the Bamford article is that one computer program—PRISM, UPSTREAM, and so on—is leading to the next, that the desire to obtain information, in whatever form, has become an end in itself, which is what is leading to the construction of a massive electronic records holding facility in the desert in Utah, one that will likely become a monument to future generations of the folly of the current one.

The stirrings of rebellion in the House are a welcome sign. Obama has not simply abdicated leadership on civil liberties, but is actively endorsing policies that undermine them. It is up to Congress to stop him.