Immigration, the economy, inequality, climate change, health care, terrorism: candidates for president will have
plenty to talk about over the next year and a half. Something to add to that
list: government surveillance.
Tension between civil rights and the fear of enemy attack
seems unavoidable. But too often, fear leads us to question authority too
little, and give up too much.
Thanks to Edward Snowden, we know some of what we’ve given
up. Some. And last week, with the passage of the USA
Freedom Act, Congress and the president stemmed a bit of that erosion.
The National Security Agency can no longer engage in the bulk
collection of Americans’ phone records. Instead, phone companies will keep the
data, the NSA has to get a court order to get access to it, and the NSA must
show that there’s reasonable suspicion that the data is related to
international terrorism.
But the Freedom Act reforms aren’t enough. “In truth,” writes The Nation’s David Cole, “the USA Freedom Act addresses only a small fraction
of the NSA’s dragnet surveillance operation, and will leave most of the
problematic programs Edward Snowden disclosed untouched.”
The Freedom Act addresses problems in a section of the
Patriot Act, passed after the September 11, 2001, terrorist attacks. Writing
recently in the Washington Post, John Napier Tye, a former State Department
official who worked on global internet policy, insisted that Americans
should be “even more concerned about the collection and storage of their
communications” under a 1981 Executive Order.
The order deals with foreign intelligence investigations, not
domestic, and US citizens, permanent residents, and
companies can’t be “individually targeted under 12333 without a court order,”
Tye writes. But if our communication is “incidentally” captured, it can be
kept. Nor is this simply a collection of metadata; Executive Order 12333
authorizes the NSA to capture, read, and keep the contents of e-mails.
While the order deals with communications outside the US, the
internet knows no borders. Communications between people and companies within
the US are often transmitted or stored abroad.
And critics in Congress say there is very little oversight of
the NSA’s actions. “What Snowden showed,” writes Tye, “is that unless we are
aware of the scope of what the government is doing when it spies on us, we are
unlikely to be able to control it.”
It’s not that terrorism presents no danger. But the issue is
how we respond. Intelligence officials have presented no evidence that the bulk
collection of communications data has prevented a terrorist attack. And the
assault on Americans’ civil liberties is clear.
Recent polls indicate that Americans want government
surveillance reined in. But a new terrorist attack – or a president
exaggerating intelligence reports of the danger – could change that in the bat
of an eye. And this country has a sordid history of over-reacting to fear.
In a book I’ve found particularly enlightening, “Fear Itself:
The New Deal and the Origins of Our Time,” author Ira Katznelson details some
of America’s reactions to fear.
“FDR authorized wiretaps against Americans thought to be Nazi
spies,” Katznelson writes, “even though Congress had explicitly banned the
practice.” Congress authorized Roosevelt “to order the surveillance and
censorship of mail, telegraph cable communications, and radio broadcasts ‘when
deemed necessary to the public safety.'”
And, writes Katznelson: “The
Justice Department, the Department of War, the various armed services, and
specialized agencies such as the Office of War Information and the Office of
Censorship kept persistent watch over African-American reporters and editors.”
We tolerated the internment of Japanese Americans. Fear of communism generated
the McCarthy era.
Those, of course, were different times, with different
threats. But fear is fear. And as we saw after 9/11, it can wipe out caution
and skepticism. It’s way past time for a full-blown discussion of fear-inspired
secrecy and abuse of power. That’s an awfully good topic for a presidential
election campaign.
This article appears in Jun 3-9, 2015.
