Eight weeks ago a series of explosive leaks blew the hinges off the closet containing the National Security Agency’s skeletons.
“This is more than we’ve learned in the last 35 years,” says Michelle Richardson of the ACLU.
The man behind the leaks, 30-year-old former NSA contractor Edward Snowden, said he couldn't "in good conscience allow the U.S. government to destroy privacy" after he exposed the scope of government surveillance programs to The Guardian and The Washington Post. Snowden’s leaks confirmed what civil liberties groups have feared for years: That beneath political rhetoric about the rule of law and respect for fundamental liberties, the U.S. government was indiscriminately gathering information on American citizens under authorities originally meant to protect the country from terrorism.
Snowden has been called a hero by some and a traitor by others, but one thing is clear: Because of evasions by government officials who tried to keep the nature of these surveillance programs secret, the public would never have known about the breadth of government spying had it not been for Snowden’s leaks, which have dramatically shifted the politics of surveillance in the U.S. Congress.
"[Snowden]‘s disclosures have changed the course of human history," Republican Rep. Thomas Massie of Kentucky told Democracy Now. "His initial disclosures were a service to our country because now we’re having this conversation—and we wouldn’t be having this conversation."
The way things were
Before Snowden’s leaks, reauthorizations of laws like the Patriot Act or the Foreign Intelligence Surveillance Amendments Act were mere occasions for Cassandras in Congress to espouse vague prophesies about the eroding of American freedoms. Legislation was crafted in such opaque terms that the government could collect information on Americans as long as it wasn't "targeting them," or when one end of the communication was presumed to be outside the country. Legislators used that linguistic distinction to publicly insist no information was being gathered on Americans at all.
Though President Obama had said the choice between security and liberty was a false one, once in office it was clear he had taken sides. Democrats went along with him, leaving Democratic Sen. Russ Feingold, once the Patriot Act’s biggest critic in Congress, mocking the Senate Judiciary Committee as "the prosecutor’s committee."
By 2011 however, Feingold was gone, along with the large Democratic majority that had been largely willing to stand by with renewing Bush-era surveillance laws with few changes. His role had passed to Democratic Sen. Ron Wyden of Oregon, who had few allies in Congress interested in reform. Though libertarian-minded Republicans in the Senate had joined Wyden and other civil liberties-focused Democrats in reform efforts, they were consistently voted down by a majority of their colleagues. Last December, the Senate actually voted down an effort to get the NSA to disclose how often the agency collects information on U.S. citizens.
"We wouldn’t be having this conversation at all without [the leaks]," says Richardson. "We would still have Wyden on the Senate floor saying, 'I can’t tell you what I know but you would be shocked to find out.'"
What we know now
Though Snowden has provided the Washington Post, and especially The Guardian, with a steady stream of scoops about how the NSA organizes and uses the data it gathers, the first may have been the most important.
In early June, both media organizations published articles on a secret FISA court order that approved the NSA's request for all the communications records for customers of a Verizon subsidiary. The order showed unequivocally that the U.S. government was using section 215 of the Patriot Act, which allows the government to request business records "relevant" to a terrorism investigation, to hoover up data on tens of millions of Americans. Similar orders in place for other telecommunications providers showed that the standard of "relevance" meant the government could gather information on pretty much everyone.
"What made this so important was not simply that it was unknown or unfamiliar, but that it was directly at odds with what the public had been told was the case," says Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy. "In other words, it meant we had been misled."
Government officials insisted that even though the data was being gathered in bulk, analysts were only allowed to look through it under very specific and limited circumstances. Administration officials also insisted that they were only collecting "metadata," rather than the content of phone calls or emails. This is a little like saying you only hacked someone’s bank account rather than shoving a gun in a teller’s ribs and handing him a potato sack. In a digital age where people increasingly communicate more over the Internet than over phone conversations, "metadata" can reveal a near-complete record of private relationships, personal beliefs and business transactions—in other words it can say more about someone than their phone conversations. As Wired’s Matt Blaze put it, "unlike our words, metadata doesn't lie."
Crucially, the FISA court order that Snowden leaked became a key piece of evidence that the government had lied. The document's plain language and specificity meant the media could go back at prior statements by Obama administration officials and catch them red-handed.
During a Senate hearing in March, Wyden asked the administration’s top intelligence official whether the NSA collected "any type of data at all on millions or hundreds of millions of Americans?" James Clapper, director of National Intelligence, gave an unadorned, unqualified, "no." Wyden had sent Clapper his questions in advance, but the intel chief still gave an answer both men knew was untrue. Clapper later admitted to being "cute" with his answer.
Gen. Keith Alexander, director of the NSA, was similarly embarrassed when he was caught having told an audience at a conservative think tank that "We don’t hold data on U.S. citizens." Even if you accept that the government needed a "haystack" of communications data through which to search for terrorist needles, these statements proved that officials had been lying about whether or not the haystack even existed. Documents disclosed by the administration this week showed that the NSA had actually violated court-imposed limits on the program.
These statements were more than just embarrassments for the Obama administration, which maintains that the leaks have done serious damage to US national security. Previous revelations about the scope of government spying hadn't pushed Congress toward reining them in. After the news broke in 2006 that the Bush administration had been unilaterally spying on Americans without congressional authorization, Congress simply retroactively legalized the program, persuaded by intelligence officials that broad surveillance powers were essential to preventing terrorist attacks. But the misleading statements by Obama administration officials to members of Congress, combined with exaggerated or at least unsubstantiated claims about the usefulness of the programs, angered legislators who felt they had been lied to. Rep. Jim Sensenbrenner, self-identified "author of the Patriot Act" and once one of its most vocal defenders, warned Obama administration officials during a hearing that if they didn’t change their ways, "you’re going to lose [section 215] entirely."
Documents released by the administration show that information about the scope of the programs had been available to legislators since at least 2009, but most lawmakers have neither the staff support nor the interest to keep up to speed on matters they’d rather leave to their colleagues on the judiciary and intelligence committees. Those who did know were hampered by classification rules in their ability to discuss them.
"It's hard to have an informed public debate when the public isn’t getting the information it needs to express a view on where we should be drawing the line on privacy and security," says Democratic Rep. Adam Schiff of California. Declassification, he says "ought to be a statutory requirement so that the policy of transparency transcends administrations and doesn’t ebb and flow with whomever is in the White House."
Not blowing over
One of the surprising aspects of the NSA revelations is that the story hasn't blown over yet. Members of Congress from both parties have scrambled to push legislation that would declassify secret FISA court opinions that reinterpret national security laws, place a "public advocate" before the FISA court who would argue against secret government surveillance requests, or that would leave communications data in private hands rather than letting the NSA acquire it. Then in late July, the House nearly passed an amendment to a defense funding bill that would have barred bulk collection of Americans' data under the Patriot Act. The fact that it even came close to passing, and that the administration had to send NSA chief Alexander himself down to the Hill to lobby against it, shows how much the politics of surveillance have changed in Congress.
"It shows there's political diversity to the opposition. This is some of the widest support we've seen, that has been a game changer," says the ACLU’s Richardson. The House amendment was championed by Michigan Reps. Justin Amash and John Conyers, a libertarian Republican and liberal Democrat who typically find themselves at odds on most issues.
"The administration seemed to be operating under the assumption that this just wasn’t going to last long, there would be some leaks, the usual suspects would get upset, and then everyone would get over it," says Richardson. “Instead, people started digging in."
Shortly after the initial disclosures, Obama said he "welcomed" a debate over government surveillance he had by all available evidence tried to avoid. After almost two months of criticism from lawmakers, the president met last week with some of the most influential critics of government surveillance in Congress. They've shown no sign that they intend to back down. As for Snowden, the Obama administration has sought to prosecute him for espionage, but the former contractor has found temporary asylum in Russia, a country not known for its respect for civil liberties. Though it has promised not to seek the death penalty for Snowden, the administration has failed to persuade Russia to hand him over.
The NSA’s critics in Congress are planning to try and attach legislation reforming government surveillance powers to the must-pass funding and authorization bills Congress will take up after the August recess. Maintaining public pressure and keeping their ideologically diverse coalition together will be difficult—Wyden himself has warned that the NSA's violations of already permissive rules on spying have been "worse" than the agency has admitted.
All of this leaves America at a unique place in its post-9/11 history, with a public more skeptical of the government’s national security powers than ever before and legislators willing to do something about it. That doesn't mean they will, but it does mean that for the first time, the debate that Obama "welcomed" after the initial leaks is really happening.
Correction: A previous version of this post said both organizations published the court order on June 3, The Guardian published its story on June 5 and the Post on June 6. Only The Guardian published the order itself.