Legitimacy is at stake for the United States government after former National Security Agency contractor Edward Snowden revealed documents on secret surveillance programs that has ignited a wide-ranging debate. At the forefront of intelligence community efforts to fully restore legitimacy to the massive surveillance apparatus that has grown since the September 11th attacks is Senator Dianne Feinstein, chair of the Senate Select Committee on Intelligence.
Though the program violates the law and is also unconstitutional, Feinstein ignored this and couched the necessity of the program in the language of warfare. It further demonstrated how she is one of the NSA’s most fawning and insidious defenders.
“Since it was exposed in June by leaker Edward Snowden,” Feinstein wrote, “the National Security Agency’s call-records program has become controversial and many have questioned whether its benefits are worth the costs. My answer: The program—which collects phone numbers and the duration and times of calls, but not the content of any conversations, names or locations—is necessary and must be preserved if we are to prevent terrorist attacks.”
She recounted a story about former CIA director George Tenet being panicked about al Qaeda ahead of the September 11th attacks. She equated that moment to a campaign of fear around chatter intercepted between two al Qaeda leaders that led to the temporary clearly intended to stifle calls for reforms that would constrain the NSA’s powers to collect and store virtually all Americans’ data.
Although Feinstein now used the word “events” instead of “plots,” she restated a false intelligence community claim that 54 acts of terrorism were thwarted as a result of the bulk data collection program. Senate Judiciary Committee Chairman Patrick Leahy managed to get NSA Director Gen. Keith Alexander to admit that phone records collection stopped terrorist activity in only one to two terrorist cases.
She highlighted the case of 9/11 hijacker Khalid al-Mihdhar to further support her argument except, according to Sen. Ron Wyden, “The government had all the information it needed to go to the phone company and get an individual court order.” And, “If time was of the essence” in any of these cases, the government could seek a “different court order or administrative subpoena” that “would allow for an emergency request for the records.”
“The NSA call-records program is working and contributing to our safety. It is legal and it is subject to strict oversight and thorough judicial review,” Feinstein argued.
According to Georgetown Law professor Laura Donohue, who testified before the Senate Judiciary Committee, this is patently false. Foreign Intelligence Surveillance Court (FISC) orders for information are not properly particularized or targeted. It violates the law by allowing millions of records to be collected, all of which could not be “relevant to an authorized investigation,” as they must be under the Foreign Intelligence Surveillance Act.
“The FISC order governing the telephony metadata program amounts to a general warrant, which the Fourth Amendment precludes,” Donohue argued. “It authorizes the government to rummage through our papers and effects in the hope of finding wrongdoing. There is no previous suspicion of criminal activity. FISC admits that almost none of the information obtained relates to illegal behavior.”
A March 2009 FISC opinion found the NSA was collecting data that “otherwise could not be legally captured in bulk by the government.” Yet, the court reauthorized collection of “call detail records” because the government had explained such data was “necessary to analytical methods that are vital to the national security of the United States and that it had “minimization procedures” to “carefully restrict access” to the data. A program the court considered to be violating the law was permitted to continue even though the court’s role was to act as a check against this kind of abuse of authority.
Toward the end of her op-ed, Feinstein mentioned she introduced legislation to make “improvements to these counterterrorism programs” that would “require court review when the call records are queried” and “mandate a series of limitations on how the records can be obtained, stored and used.” That might lead one to think Feinstein is in favor of reform, however, her legislation is intended to disrupt concerted efforts to truly impose reform.
The American Civil Liberties Union pointed out that her proposed legislation might change the way the NSA accesses Americans’ phone records but it will not impose a limit on the volume of records collected. In fact, the legislation is likely to expand government surveillance powers by “legalizing the warrantless wiretapping of people known to be located in the US for 7 days where that surveillance began abroad.” And, under a section of FISA, the legislation would also legalize queries for “US persons’ names or email addresses without probable cause, so long as it is for ‘articulable foreign intelligence purposes.’”
Similar to what former vice president Dick Cheney might have said if he were in her position, she concluded, “If we end this vital program, we only make our nation more vulnerable to another devastating terrorist attack.” This is because fear is all Feinstein has to make the case that the NSA should not give up any of its powers.
Wyden, who has introduced his own legislation, warned Americans last week to expect this from members in Congress, who are part of the “business-as-usual brigade.” He told an audience at a recent CATO Institute event on NSA surveillance “defenders of the status quo will argue that the best way to protect Americans’ rights is to codify these rules into law, and maybe tweak them a little bit around the edges.” He explained that codifying the bulk data collection program into law would make it more permanent and make it easier for the government to justify collecting other types of records under the PATRIOT Act.
“Codifying the bulk collection program into law and ushering in a new era of digital surveillance would normalize overbroad authorities that were once unthinkable in America,” Wyden added.
The op-ed written by Feinstein is but another signal that Feinstein will be working to suppress a movement to diminish some of the NSA’s authority and constrain its power to conduct boundless and unchecked surveillance.
Feinstein is an artful politician, a Democrat but that is the label which gives her the credibility to build support for her agenda. She knows exactly what she is doing and hopes she can aid the intelligence community by directing energy for action into the passage of her legislation, which would expand the NSA’s power and re-legitimize it in the eyes of Americans.
If she can limit the terms of what’s possible, contain reform efforts in Congress and steer them in the direction that the intelligence community and administration of President Barack Obama desires, the NSA will not only escape the aftermath of Snowden’s disclosures largely unscathed. Its powers will expand and become even more entrenched.