To Keep or Not to Keep: NSA Surveillance Program

BY CHRIS PAWLIK — The question contemplated before the Senate Intelligence Committee recently was what changes could be made in order to preserve the formerly secret National Security Agency (NSA) program that logs every American’s telephone calls. [1] While competing bills emerged between one camp within the Committee led by Senators Mark Udall (D-Co.) and Ron Wyden (D-Or.) that advocates banning the massive collection program and the other camp led by Senators Diane Feinstein (D-Ca.) and Saxby Chambliss (R-Ga.) that advocates preservation of the program, it appeared that the version of the bill being drafted and proposed by Senators Feinstein and Chambliss would be likely to pass. [2]  The authority allowing for the existence of the NSA programs originates from the Patriot act and its subsequent extension.

On May 26, 2011 President Obama signed the PATRIOT Sunsets Extension Act of 2011, presumably extending the framework of the program established under his predecessor, George W. Bush, who signed the initial Patriot Act shortly after the September 11, 2001 terrorist attacks. [3] The recent four-year extension kept intact Section 215 of the original Patriot Act. Section 215 amends Title V of the Foreign Intelligence Surveillance Act of 1978 and pertains to the federal government’s ability to obtain certain business records for the purpose of international terrorism investigations and the collection of foreign intelligence. [4] Further, all judicial rulings concerning Section 215 are made pursuant to the jurisdiction of the Foreign Intelligence Surveillance Court (the FISA court). The FISA court’s eleven Judges are assigned by the Supreme Court Chief Justice, ten of whom were assigned by current Chief Justice Roberts. [5] The rulings of the FISA court and its constitutional interpretation of Section 215 have been hitherto top-secret. [6] Section 215 lies at the heart of the legal justification for the NSA’s PRISM and XKeyscore surveillance program, which were revealed by former Booz Allen Hamilton employee and government contractor, Edward Snowden. [7] Yet surprisingly little is known about the exact rationale underlying the FISA court’s rulings pertaining to Section 215.

At Thursday’s hearings General Keith Alexander, Director of National Intelligence James Clapper, and deputy attorney general James Cole urged members of the Senate Intelligence Committee to preserve the foundation of the program and not to capitulate to public anger surrounding Snowden’s leaks. [8]  Their antipathy towards furthering open discussion of the programs and their underlying rationale is not surprising and is understandable given the roles they play in the federal government. However, the opposition by Senators Feinstein and Chambliss is surprising. Comments at Thursday’s hearing by Feinstein and Chambliss made clear that they are primarily concerned with dealing with the fallout of Snowden’s leaks rather than addressing understandable public concern underlying the government programs. [9] Although Senator Feinstein assures the validity of such programs, their legality remains questionable. This is especially so as several members of the FISA court such as Claire Eagan and Dennis Saylor [10]  have called for a more open discussion regarding their rulings. [11]

An informed debate presumes that both sides of discussion have adequate information to approach the issue before them. However, how informed can a debate with the American public be when access to vital legal records are under lock-and-key? Senator Feinstein stated, “the public has a misperception” of the way in which these programs are run. [12]  However, one could argue the public does not have a misperception; what the public actually has is an extremely limited and skewed perception. Furthermore, if gag orders are preventing many well-known business leaders at Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, AT&T, Verizon and Apple—to name only a few—who are arguably the most qualified to inform and most capable of stimulating wider discussion throughout American society, then no significantly meaningful dialogue can occur between the American public and those seeking to protect them. [13]  What’s even more detrimental for launching an informed dialogue are corporate executive’s attitudes regarding the pervasive government monitoring of electronic communications that on one hand recognize “spying as the nature of American society” while on the other hand refusing to “pass judgment” on spying operations. [14]  Such lax attitudes detract from an open dialogue by simply saying there is not an issue at hand to discuss. Granted, it remains to be seen what effect the FISA court’s declassification of previously top-secret documents concerning their legal interpretation of Section 215 of the Patriot Act will have in furtherance of this discussion but those most qualified in our society to inform the public must be allowed to be heard. [15]

While additional voices in Congress such as Senators Rand Paul (R-Ky.) and Richard Blumenthal (D-Conn.) have risen with Senators Udall and Wyden in speaking out against massive government surveillance programs, their voices are heard the least in terms of substantive decision making in the Senate Intelligence Committee. Amazingly, just two days after the Senate Intelligence Committee hearing, the New York Times published an article demonstrating that the NSA’s surveillance operations and capabilities extend significantly beyond the collection of every American’s call logs by actively monitoring social networks. [16] At Thursday’s hearing Senator Feinstein brazenly stated, “much of the press has called this a surveillance program. It is not.” [17]  Senator Feinstein’s statements come off as out of touch with the reality of the information being leaked to the public. If the size of the NSA’s one yottabyte Utah data center storage capability is any indication, the government’s storage of troves of American’s and foreigner’s personal information is unlikely to stop any time soon. [18]  That being said, an open and informed dialogue between the public and the federal government must fervently continue lest the erosion of our civil liberties under the guise of national security and mere assurances of legality.

This is part one in a multi-part series that examines the legal aspects and wider impact of the information leaks of former NSA contractor Edward Snowden on United States national security. The next article in this series will examine the methods by which the federal government collections information, the extent of information gathering, the locations and services information is gathered from, and how that information is used.