WASHINGTON, May 22, 2015 — Senate Majority Leader Mitch McConnell, R-Ky., is playing “beat the clock” on the continued authorization of the NSA program to collect the phone data of U.S. citizens. Current authorization ends on June 1, and there is no consensus on how to go forward.
Congress is in the middle of a heated debate on whether to extend the program for two more months or for five years, whether to simply allow it to expire or to pass it with some reforms. To muddy the waters further, the House passed the so-called Freedom Act that appears to curtail the government’s ability to collect phone data, but in fact only changes the place where those records are stored. Instead of the NSA holding on to the data, they will reside with phone companies.
Last week, Congressman Mike Pompeo, R-Kan., a senior member of the House Permanent Select Committee on Intelligence, spoke at the Hudson Institute on this topic. He discussed the constitutionality of the metadata collection program, Section 215 of the Federal Intelligence Surveillance Act, and how the National Security Agency’s efforts fit into the broader framework of national security.
“Contrary to the claims of the Edward Snowdens of the world,” said Pompeo, “What we’ve done with the Patriot Act is not to provide the president with more power; rather, we’ve provided greater oversight in the execution of his authority under Article II. The Patriot Act actually provides the legal framework and restrictions on governmental power that the American people expect. It ensures that the executive branch is accountable; that it has to report failures, in addition to successes, and that its powers are contained and focused. Ultimately the Patriot Act creates a thorough system of checks and balances and oversight. It may have been ‘secret’ from the public before Snowden, but its oversight has been extensive: FISA court review—congressional review—all three branches working together—just like founders intended. So this is not, as the privacy pretenders will assert, a ‘secret’ program being run by three gnomes in the basement of Fort Meade—it is a shining example of governmental checks and balances that has served our country well.”
Still, the information is stockpiled, so the only change the reforms enact is possibly to slow down the pace at which the government knows more about its people than the framers of the Constitution ever intended.
McConnell is concerned that the Patriot Act might not be extended. He said, “I don’t want us to go dark, in effect, and I’m afraid that the House-passed bill will basically be the end of the program and we will not able to have yet another tool that we need to combat this terrorist threat from overseas.”
Concerns about the U.S. going “dark” in its ability to spy on Americans are exaggerated. The U.S. always has kept and will continue to keep tabs on its people. Most countries with a tradition of freedom and pluralism, including the United States, have long had restrictions on their governments’ ability to spy on their people. The reach the government has today, through the Patriot Act, is relatively new. It is a post-September 2001 law connected to the “war on terror.” Before then, the U.S. largely outsourced this type of spying activity to friendly countries.
After the end of World War II, the United States, United Kingdom, Canada, Australia and New Zealand entered a mutual cooperation agreement that, among other things, allowed these countries to spy on one another. Over the years, the number of countries in the agreement has grown to 14. All of these countries have restrictions on spying on their own people, but do not have issues with spying on others. For decades, there has been a history of just such spying on one another and exchanging those data.
This type of exchange of data has been common for decades, and it is business as usual for these countries.
The only reason the government moved from this model to direct accumulation of data is because it wanted to have quicker access to those data. But don’t be concerned; even without the Patriot Act, the government knows how to maintain a watchful eye on its people. Or maybe that is exactly what we should be concerned about?