Secrets, Surveillance, and Scandals: The War on Terror’s Unending Impact on Americans’ Private Lives
While Congress and courts would eventually strike down bulk collection and make other reforms, the process required drawn-out legal and legislative battles. And the executive branch forced concessions along the way, limiting reporting and transparency on its warrantless surveillance system. The heavy lift of reform and lack of accountability showed that for the executive, it was much more advantageous to ask for forgiveness than permission.
Secret Surveillance Undermining Policymaking
In the fall of 2013, lawmakers led by Sensenbrenner and Senator Patrick Leahy (D-VT) started to push legislation that would end bulk collection and make a series of other significant reforms to mass surveillance and the lax oversight systems around it.
But intelligence agencies were committed to fighting for mass surveillance. And while the continued bulk collection of phone records was no longer secret, many details of how this surveillance system worked still were, and secrecy quickly became a weapon for defending it. Following the Snowden disclosures, the NSA depicted bulk collection as an essential tool for keeping Americans safe, claiming it had been key to discovering or disrupting 50 terrorist plots.
Because these alleged successes were all based on classified investigations and documents, it was impossible to vet the claim. But over time critical members of Congress, especially Leahy, dug in and began to press the NSA to justify their assertion. And under steady scrutiny, the number of terrorist plots the NSA claimed were thwarted through bulk collection dropped from over four dozen to just one.
Finally, that one instance was revealed to be not a plot at all, but a case involving £8,000 of alleged “material support.” Independent investigators similarly found the executive branch’s claims that bulk collection was a critical national security tool to be lacking. After over a year of investigating classified materials, the Privacy and Civil Liberties Oversight Board — an oversight body created specifically to examine how war on terror policies impacted civil liberties — produced an extensive report on bulk collection.
It concluded that there was “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” And the President’s Review Group on Surveillance, a task force of experts including former high-ranking intelligence officials, wrote that bulk collection “was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional [i.e., targeted] section 215 orders.” Eventually, the intelligence community acknowledged that ending bulk collection would not harm national security. But it only did so after two years of legislative debate, and with several important provisions of the reform legislation, the USA FREEDOM Act, weakened or removed along the way.
Passed in June 2015, the USA FREEDOM Act made critical changes to FISA and to our national security surveillance system, principal among them a ban on bulk collection. It also improved the FISA Court and combatted secrecy. It required the intelligence community to disclose any decisions that created a “novel or significant” interpretation of law (as its approval of bulk collection under the PATRIOT Act had done), and it created a position for a “special advocate” to defend privacy rights and bring broader perspective to important FISA Court deliberations.
Finally, the law required new public reporting to give better perspective on the scale of government surveillance.
Twenty Years On, What Is Ahead?
The USA FREEDOM Act served as the most significant reform to national security surveillance in nearly four decades. But in many ways, the law was just a first step in remedying the dangerous surveillance policies enacted after September 11. While bulk collection is a thing of the past, the legacy of the war of terror has left many obstacles for us to overcome.
In a compromise with the intelligence community, the act created the authority for a new “call detail records” program that allowed for broad requests for sets of phone records.
This system proved to be so dysfunctional that the intelligence community was forced to pull the plug on it only a few years after it went into operation.
Thanks to the work of advocates, outlawing this problematic system is virtually guaranteed as a feature of any future PATRIOT Act reauthorizations.