ECHOES
There is currently no clear path to reform. All three branches of US government have, in some measure, enabled, allowed, or justified the existence and continued use of unprecedented NSA programs that collect data on American citizens.
President Obama, who is the NSA’s top brass as commander-in-chief of the US military, has shown no genuine interest in reforming the agency. In addition to broadly defending the bulk surveillance programs before the public, his NSA review panel — created in response to leaks from Edward Snowden — is filled with insiders who are unlikely to provoke change.
Congress, which is responsible for oversight of the intelligence community, is currently divided on the issue of mass surveillance. It has arguably failed to fully meet its oversight role, neglecting to collect adequate information from the NSA about its activities, and opting not to hold intelligence officials accountable for blatantly lying to Congress and the public. For instance Director of National Intelligence James Clapper and NSA Director Keith Alexander each, in separate Congressional hearings, testified that the NSA was not collecting data on US persons. In fact, is has been collecting data on billions of phone records and other information belonging to US citizens.
Ironically, the Select Committee on Intelligence, the Congressional body charged with overseeing the NSA and other intelligence groups, was established precisely to prevent domestic surveillance abuses. The Church Committee, established in 1975 to audit the intelligence community following Watergate, learned that in the 1950s the CIA and the FBI had intercepted and collected the contents of over more than 215,000 pieces of mail belonging to US citizens. And indeed, surveilling US citizens is in the NSA’s pedigree; recently, declassified documents revealed that Martin Luther King Jr, Muhammad Ali, and other prominent Americans were targets of NSA surveillance during the Vietnam War, from 1967 to 1973.
The current chair of the Senate Select Committee on Intelligence, Senator Dianne Feinstein (D-CA), is one of the most ardent supporters of NSA bulk surveillance and originally downplayed the Verizon leak as business-as-usual. In October, Feinstein took out an op-ed in USA Today, arguing that metadata deserves no Fourth Amendment protection. On October 31st, Feinstein passed an NSA "improvement" bill in Congress offering no real reform; in fact, the Feinstein bill legitimizes the mass data collection that has so far been justified in secret.
"What happens to our civil liberties if the surveillance state is allowed to grow unchecked?"Some lawmakers, however, are working to reverse mass surveillance of US citizens. On October 29th, Senator Patrick Leahy (D-VT) and Patriot Act co-author Rep. Jim Sensenbrenner (R, WI) introduced the "Freedom Act," which would end bulk data collection by rewriting Section 215 of the Patriot Act and creating new limits on FAA Section 702. Others, like Senator Ron Wyden, (D, OR), have issued repeated warnings about the NSA’s capabilities. "The combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action could lead to a surveillance state that cannot be reversed," Wyden said earlier this year. "What happens to our government, our civil liberties, and our basic democracy if the surveillance state is allowed to grow unchecked?"
Finally, the judicial branch, which has secretly authorized mass NSA spying over the past decade in collaboration with the executive and legislative branches, could play a role in reform. While some tech companies are currently suing the government to release gag orders preventing them from informing customers about how many data requests the government makes, such efforts are largely cosmetic, and won’t impact data collection. The American Civil Liberties Union, Public Knowledge, the Open Technology Institute, Free Press, Human Rights Watch, and others have sued to end the telephone dragnet, arguing that the collection violates the First, Fourth, and Fifth Amendments.
There’s still a mountain of information we don’t have about the National Security Agency — including information about the NSA’s methods that may never come to light. Of course, that’s to be expected; many of the NSA’s activities must be conducted in secret to have any kind of efficacy. But today’s NSA is exceptional in that its technological ability appears to have vastly exceeded both its original mandate and the ability of the government to conduct effective oversight. President Obama has at least conceded this point. "In some ways, the [NSA’s] technology and budget and capacity have outstripped the constraints," Obama said in a November 7th interview. "We’ve got to rebuild those."
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