Why Should Congress and the Courts Care About Snooping If Citizens Don't?

By James Joyner
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Reuters

The New York Times editorial board complains, "Except for a few leaders and members of the intelligence committees, most lawmakers did not know the government was collecting records on almost every phone call made in the United States or was able to collect anyone's e-mail messages and Internet chats." Further, it adds, "since the public did not know about the extent of the surveillance, it was in no position to bring popular pressure against elected representatives."

The nature of sensitive information, alas, is that it cannot be simultaneously shared with the American public and kept secret from those who mean us harm. If American lives are seriously at risk if information gets out, it seems perfectly reasonable to limit access. That's the reason information classification exists: to share it with only people who both have a demonstrated need to know and are believed, through a series of background checks of increasing rigor for more sensitive secrets, to be trustworthy. (Alas, as we've learned yet again, this vetting process is hardly foolproof.)

Who gets to decide what should remain secret? As I've argued elsewhere, while there's no perfectly satisfying answer, the most reasonable is those senior government officials who have been elected, appointed, and otherwise trained and entrusted to make those decisions. Most obviously, that includes the president, the defense secretary, and our senior intelligence officials.

That's an awful lot of power to entrust to one branch of government, so we have in place a system of checks and balances whereby the two other branches ensure secrecy is not abused and the Constitution is followed. While it's true that "the United States has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth," there is serious reason to doubt the vigor with which these institutions are doing their job. There's very little resistance to intrusive programs if they're done in the name of public safety or fighting terrorists.

On the legislative side, Senator John McCain contends that members of Congressional intelligence committees have all been well-briefed. "We passed the Patriot Act. We passed specific provisions of the act that allowed for this program to take place, to be enacted in operation," McCain said. The degree to what members have been briefed is in dispute, but he surely right that Congress paved the way for this program and others in the frenzy following 9/11. But almost a dozen years have passed now and there's very little evidence that they're interested in taking any of that power back.

One legislator taking his oversight responsibilities seriously is Ron Wyden, an Oregon Democrat and member of the Senate Intelligence Committee. Back in March, he asked James Clapper, the director of national intelligence, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" and was told, "No, sir."

Given that we've since learned that the NSA is collecting tons and tons of data on hundreds of millions of us, Clapper would appear to have lied. But, as Bill Clinton might say, it depends on what the meaning of "collect" is. In defense-intelligence circles it has for decades been understood that "Data acquired by electronic means is 'collected' only when it has been processed into intelligible form." But Wyden quite reasonably isn't buying that explanation.

Perhaps Clapper thought this was not a question he could answer truthfully in a public hearing. But, given that he had the question in advance, he could easily have communicated that concern to Wyden and to committee Chair Dianne Feinstein or Vice Chair Saxby Chambliss. It's conceivable that keeping even the rough outlines of the program secret is necessary. But Congress has a crucial role in deciding such things and, quite obviously, can't perform it without being properly informed.

Then again, it's not at all clear that an informed Congress -- or even informed intelligence committees -- would matter. We've seen time and again in the almost dozen years since the 9/11 attacks an almost bipartisan deference to the executive. Wyden is in a tiny minority; most at least publicly side with McCain, Feinstein and others who see these programs as critical to protecting the Republic.

And, certainly, the American people themselves seem predisposed to trade privacy and liberty for even the illusion of safety, as evidenced by what we'll put up with at airports and virtually every opinion poll on the subject. A solid majority (56 percent) in a Washington Post-Pew survey taken after the NSA story broke support the program and a whopping 62 percent "think [it] is more important right now for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy."

The judicial branch, meanwhile, has been a steady if slow check on some of the most egregious civil-liberties abuses. For example, Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), and Boumediene v. Bush (2008) reaffirmed the rights of due process for those accused by the executive of being enemy combatants.

At the same time, it's reasonable to wonder how effective a check the Foreign Intelligence Surveillance Court has been. It "approved all 1,506 government requests to electronically monitor suspected 'agents' of a foreign power or terrorists on U.S. soil" in 2010 and "did not deny any applications in whole, or in part." Indeed, they've "declined just 11 of the more than 33,900 surveillance requests made by the government" between 1979 and 2012, an approval rate of 99.97 percent!

But the notion that they are a "rubber stamp" is overblown. While they operate in secrecy, making monitoring their activities next to impossible for those of us outside the system, the court is comprised of 11 U.S. District Court judges appointed by the chief justice of the Supreme Court for seven-year terms. They're real Article III judges, not cronies of the administration or the intelligence services.

The ACLU's Timothy Edgar argues that it's the professionalism of the requests that accounts for the high approval rate. The Justice Department lawyers who draft the requests are "very reluctant to get a denial" and therefore essentially act as in-house judges, seeing themselves "not as government advocates so much as neutral arbiters of the law between the executive branch and the courts" and therefore "getting the order approved by the Justice Department lawyers is perhaps the biggest hurdle to approval." Additionally, while the FISA judges almost never reject these requests, they do occasionally modify them.

It's worth noting, too, that the version of this program that started under the Bush Administration was done without bothering to consult the FISA Court, under the theory that the Patriot Act authorized the president to make the call unilaterally. And that Congress enthusiastically backed that move years after the fact once the news came out.

Then again, the law itself makes approval of these massive requests pretty easy. The metadata in question in this program does not require a high bar at all because our regular courts decades ago ruled that there was a very low expectation of privacy to the fact of conversations, even in ordinary criminal matters; it's only the content of the conversations that requires a high burden of proof.

Indeed, whether in matters of national security or even ordinary law enforcement, the courts have in recent decades bent over backwards to side with the executive branch's interests in protecting the public and its officers, interpreting the protections of the Fourth and Fifth Amendments and the right to privacy quite narrowly. On balance, the American public and its elected representatives approve.

Americans' civil liberties are almost certainly threatened more by plainly transparent actions of police officers and other government agents carrying out the War on Terror and the War on Drugs than from NSA computers scanning our phone logs. Until we start caring about these things, however, it's highly unlikely that our elected representatives will.

This article available online at:

http://www.theatlantic.com/politics/archive/2013/06/why-should-congress-and-the-courts-care-about-snooping-if-citizens-dont/276826/