Sensenbrenner began to question whether our constitutional rights are secure. "I do not believe the released FISA order is consistent with the requirements of the Patriot Act," he wrote. "How could the phone records of so many Americans be relevant to an authorized investigation?" His newfound skepticism came as a pleasant surprise to critics of the surveillance state. Two years ago, when key provisions of the Patriot Act were scheduled to sunset, Sensenbrenner proudly and unapologetically lobbied for the re-authorization of the law he helped write. Congress ought to make provisions including Section 215 permanent, he argued back then. "Section 215 of the Act allows the FISA Court to issue orders granting the government access to business records in foreign intelligence, international terrorism, and clandestine intelligence cases," he said. "The USA PATRIOT Improvement and Reauthorization Act of 2005 expanded the safeguards against potential abuse of Section 215 authority, including additional Congressional oversight, procedural protections, application requirements, and judicial review."
Edward Snowden's leaks dramatically altered his perspective. Now he says that if abuses of Section 215 persist, "it will be very difficult to reauthorize these provisions when they sunset in 2015." As yet, Sensenbrenner hasn't given a full account of what he knew and when. There is, however, a partial explanation in his letter to Holder, where he harkens back to 2011, the year he pressed for Patriot Act re-authorization. Explaining that he "relied on information from the Administration about how the act was interpreted to ensure that abuses had not occurred," he cited congressional testimony from Assistant Attorney General Todd Hinnen, saying it left the impression Obama was using Section 215 "sparingly and for specific materials."
That wasn't so.
* * *
Sensenbrenner's conversion is significant in its own right. The Obama Administration claims that Congress has always been "fully briefed" on even the most controversial surveillance activities, and that the NSA acts in accordance with duly enacted laws. What could cast more doubt on that claim than Sensenbrenner, an author and former champion of the legislation, insisting that he is shocked and dismayed by the way it has been interpreted?
But his story is also just one particularly powerful illustration of a much broader truth: Secret policy and secret law corrode representative government, undermining Americans' ability to govern themselves. In a brilliant item at PressThink, NYU's Jay Rosen explores that subject as a theorist, and links to several persuasive, abstract accounts of why secrecy threatens our system. Curiosity piqued, I decided to look back at the debate surrounding the 2011 re-authorization of the Patriot Act. In what concrete ways did the NSA's secret-keeping affect democracy?
The most dramatic example opened this article. It's hard to imagine a more powerful repudiation of the status quo than a legislator fighting to reauthorize a bill that he himself wrote, only to find out later that it has enabled, under cover of secrecy, actions he believes to be unconstitutional.
Nor is Sensenbrenner alone among legislators in feeling misled.
What's less remarked upon, however, are the myriad ways secrecy affected the debate outside the legislature, as Americans weighed the Patriot Act, its provisions, the wisdom of extending it, and how they would react to whatever votes their elected representatives cast on the subject.
Let's begin with a Washington Post item that served as a curtain-raiser for the whole renewal process:
House Majority Leader Eric Cantor's (R-Va.) office announced Friday that the House will consider a bill sponsored by Rep. Jim Sensenbrenner (R-Wis.) that would extend three provisions of the law enacted after the 9/11 terror attacks through Dec. 8, 2011. One of the provisions authorizes the FBI to continue using roving wiretaps on surveillance targets; the second allows the government to access "any tangible items," such as library records, in the course of surveillance; and the third is a "lone wolf" provision of the Intelligence Reform and Terrorist Prevention Act that allows for surveillance of targets who are not connected to an identified terrorist group.
Right from the start, Section 215 is framed as a provision that allows the government to get items "such as library records," shorthand that wouldn't make it past the copy desk at any newspaper today, because it so inadequately captures how that part of the law is actually being used. How many Americans glossed over articles like that one, concluding that the Patriot Act renewal didn't much interest them, even though they are furious over NSA phone surveillance?
Now over to The New York Times, where the regularly impressive Room for Debate feature asked, "Do we still need the Patriot Act?" Answering in the affirmative, Nathan Sales, a law professor at George Mason University, wrote, "America needs the Patriot Act because it helps prevent terrorism while posing little risk to civil liberties. The law simply lets counterterrorism agents use tools that police officers have used for decades. And it contains elaborate safeguards against abuse." Does he still believe that in light of Snowden's revelations?
"The short answer is yes," he graciously and promptly replied when I emailed him to ask, "with a footnote":
Section 215 of the PATRIOT Act authorizes the national security equivalent of grand jury subpoenas. The NSA's telephony metadata program uses section 215 in a novel way to collect much more data than police get with a typical subpoena. As I've said publicly on a number of occasions, bulk data collection programs can be valuable counterterrorism tools, but it's not clear to me that section 215 is the appropriate statutory vehicle. Congress should consider enacting new legislation to place the metadata program on a more stable statutory footing.
That is quite a footnote! It doesn't just acknowledge that the law does more than let counterterrorism agents mimic what police officers have long done -- it also (ever so gently) implies Section 215 is being abused. Sales, who couldn't have been expected to know the truth back in 2011, would've almost certainly made changes to his argument back then, given more accurate information. Would an item that included the "footnote" he just offered, along with significant tweaks to rhetoric in other debating forms throughout the nation, have changed the debate, at least enough to affect legislative amendments if not the law's renewal?
Circa 2011, House Republicans were no doubt aware of what was being written about the Patriot Act renewal in National Review. These days, a faction of them are rebelling against Section 215.
Here's what they were reading back then, many of them aware that the author, Andy McCarthy, is a former U.S. attorney (emphasis added):
It is a myth perpetuated by the Bush-deranged media that the Patriot Act was a dramatic expansion of federal power and that it unduly infringed on American civil liberties. For the most part, Patriot simply endowed the national security side of the FBI's house with the same powers that had long been exercised by the law-enforcement side. Moreover, Patriot provisions often provided more protection and court oversight than existing law-enforcement procedures.
One of the three provisions in the re-authorization is a good example: the business records provision (which opponents demagogued as the "library records" provision even though library records are not mentioned in it -- though they are covered in its sweep). In a terrorism investigation, Patriot's business records law allows national security agents to go to a court for authorization to compel the production of all sorts of records that might be relevant to a terrorism investigation. By contrast, when I was a prosecutor investigating terrorism as a law-enforcement issue, and I wanted to subpoena exactly the same kinds of information, including library records, I simply reached into my desk drawer for a subpoena, wrote up my demand, and handed it to an FBI agent to serve on the business (or library) in question. Contrary to Patriot Act procedures, I did not have to apply to a court for permission, and I did not have to certify that the information I was seeking was relevant to some legitimate investigation... and if the documents demanded were not produced, I could have the custodian of the records jailed for contempt.
Here is what I don't understand about the GOP defectors' position. It's not as if refusing to reauthorize the collection of business records, roving wiretaps, and the surveillance of lone wolf terrorists is going to result in any reduction of federal power. It would simply result in a shift from national security law to criminal law as the source of authority to use exactly the same investigative techniques.
McCarthy still favors the Patriot Act and Section 215. But the tone and substance of his analysis is much changed. Of course, Obama Administration officials who knew better dared to make similar comparisons between the power of normal prosecutors and the power of the NSA to collect data. Take Assistant Attorney General Ronald Weich, responding to a letter from Senators Wyden and Udall. The letter includes a jaw-dropping protestation of good faith:
... The Executive Branch has done everything it can to ensure that the people's elected representatives are fully informed of the intelligence collection operations at issue and how they function.
That's just a damned lie. More to the point, he wrote:
Particularly in light of the statutory requirement that a section 215 order may only obtain records that could be obtained via a grand jury subpoena (or court order), we continue to believe that the analogy between section 215 and a grand jury subpoena is apt.
A DOJ spokesman also claimed that "Section 215 is not a secret law, nor has it been implemented under secret legal opinions by the Justice Department" -- a misleading claim, since it is implemented under secret legal opinions, they're just issued by the FISA court, not DOJ.
Here's how The National Interest summed up one part of the Patriot Act in a piece advocating its re-authorization:
The most important provisions of the Patriot Act seem to meet the criterion of reasonableness.
Phones: Before the Patriot Act was passed, authorities had to obtain a court's permission to tap a phone, but the warrant had to be "particularized" to a given instrument, reflecting the days when most people had just one phone. Cell phones made this narrow rule obsolete. The Patriot Act changed this requirement to attach warrants to a suspect, rather than to one of his instruments in particular. It merely allowed the law to catch up with technological development.
And in the end, when President Obama signed the Patriot Act extension, CNN reported, "Another provision, Section 215 of the Patriot Act, allows the FBI to apply to the FISA court to issue orders granting the government access to any tangible items in foreign intelligence, international terrorism and clandestine intelligence cases." Little did Americans know that Obama had just signed a law that would continue being used to collect data on all of their phone calls.
* * *
The effect of secrecy on democracy isn't abstract. The consequences of secret law and policy are not something we're risking, or that we might suffer at some time in the indeterminate future.
Secrecy is already corroding our democracy. It's impossible to see at the time, and obvious in hindsight, when the truth outs.
In 2011, the debate surrounding the re-authorization of a major piece of domestic legislation was, indisputably, a sham. Legislators were misled. Careful, informed commentators contributing arguments and analysis in the press unwittingly misled readers with content that lacked crucial context. Hard-news articles were just as useless for formulating an informed opinion.
Even those elected representatives informed about the full extent of government surveillance were deprived of normal legislative practices -- like floor debate, letters and phone calls from constituents, input from experts outside government, and public-opinion polls -- that properly factor into their typical deliberation and voting decisions. And Americans were deprived of the right to know what their representatives really approved, meaningfully robbing them of the ability to cast a meaningful vote in the Congressional races of the 2012 cycle, a key check and balance.
Jay Rosen theorizes that some defenders of secret programs like the ones the NSA ran have repealed "the concept of an informed public," but repressed their decision "to take such a drastic step, because it's too much to face." And it's easy to see why it is too much for them to face. They've embraced a mindset that is incompatible with and capable of destroying American democracy. They might as well insist that they have to destroy the country to save it from terrorism. However well-intentioned, their mindset poses a bigger threat to America democracy than al-Qaeda. Luckily, Americans are gradually beginning to awaken to their subterfuge and radicalism.