Reining In the Unauthorized American Surveillance State | Commentary

Posted October 2, 2013 at 3:10pm

Although ideological obstructionism in Congress over federal finances has led to the first government shutdown in 17 years, it’s worth remembering that there is one issue where bipartisanship still holds — reining in the surveillance state.

In July, Rep. Justin Amash, R-Mich., and I led an effort to defund one piece of our ever-expanding intelligence-industrial complex — the ongoing collection of phone records, “metadata,” by the National Security Agency. Although our amendment fell just short, what happened on the House floor that day constitutes a turning point in our efforts to reclaim our civil liberties.

I say this for several reasons. The program itself clearly exceeds the authority granted by Congress. Section 215 of the Patriot Act authorizes the government to obtain certain business records only if it can show that the information is “relevant” to an ongoing national security investigation. Though Congress clearly intended Section 215 authority to be directed at a particular individual, and related to a specific investigation, the government chooses to collect records of every phone call made in the United States. In practice, the relevance standard has lost all meaning.

Although Amash and I assembled a bipartisan coalition that was just seven votes shy of a majority, there is ample opportunity for our numbers to grow over the coming months. For example, a number of bipartisan reform bills have been introduced in Congress, including my LIBERT-E Act, there will be other amendments to authorization and appropriations bills, and we must reauthorize the Patriot Act itself in 2015.

Most importantly, the arc of history is on our side. The “red scares” following both world wars eventually led to the discrediting of officials such as Sen. Joseph McCarthy. The illegal wiretapping of political “enemies” and other Watergate-era abuses led to the adoption of a number of checks on the intelligence community. Over time, wartime deprivation of liberties are inevitably exposed. The people — and their representatives — eventually reclaim their rights.

That’s what I witnessed firsthand on the House floor on July 24. Jerrold Nadler, a liberal New Yorker, was in complete agreement with Jim Sensenbrenner, a conservative Wisconsin Republican and the principal author of the Patriot Act, that the NSA had gone “far beyond” the Congress’ intention. Zoe Lofgren, a Silicon Valley Democrat, joined with a Texas Republican, Ted Poe, in denouncing the program as lacking proper limitation or oversight.

In contrast, our opponents relied on their usual tactic to rally opposition — fear. They told us that if the Amash-Conyers amendment passed, “our country will be more vulnerable to terrorist attacks,” although the government could have continued the responsible collection of business records on a case-by-case basis. The opposition also warned that “we’ve forgotten what happened on Sept. 11,” even though the 9/11 commission concluded that the attack resulted from a failure on the part of the government to share information, rather than a lack of surveillance capability.

What we must do now is take this new spirit of bipartisan cooperation and apply it to the decaying legal architecture of the federal government’s dragnet surveillance programs. It’s not easy taking a position at odds with your party leadership or the administration. They control the bully pulpit, set the terms of the debate and can twist arms.

But a bipartisan sense of outrage is growing, fueled by weekly revelations of misconduct by the NSA and other agencies. One recent release of documents showed that, for years, the government’s collection of domestic email was, in the words of the Foreign Intelligence Surveillance Court, “deficient on statutory and constitutional grounds.” Another revealed that the NSA was substantially out of compliance with its court orders for the first three years of its telephone metadata program, and materially misled the court during that time.

Other reports have described the NSA’s efforts to infiltrate technology companies and weaken the protocols that protect private communications on the Internet. It’s one thing for an intelligence agency to break encryption on other computer systems — it’s quite another for the government to actively sabotage commercial products to make it easier for outsiders to eavesdrop.

When the original Patriot Act passed in 2001, 66 House members voted against it. In the wake of reports concerning abuse of National Security Letter power, opposition to the act’s reauthorization grew to 138 in 2006 and 144 in 2011. Last July, a full 205 members were unwilling to support the Section 215 metadata program.

I believe the foundation has been laid to reclaim our citizens’ rights, and it’s principled, bipartisan and growing.

Rep. John Conyers Jr. is a Democrat from Michigan.