Secrecy Has Already Corroded Our Democracy in Real Ways

The renewal of the Patriot Act is a case study in how opaque policy and law destroy a people's ability to self-govern.
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This summer, Rep. James Sensenbrenner, an author and longtime champion of the Patriot Act, emerged as one of the most concerned voices arguing that the law is being used to violate the rights of Americans. A letter the Wisconsin Republican sent to Attorney General Eric Holder singles out Section 215, the law's "business records" provision. "As the author of the Patriot Act,"  he wrote, "I am extremely disturbed by what appears to be an overbroad interpretation." He was referring to Edward Snowden's revelation that Team Obama collects data on the phone calls of almost all Americans.

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.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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