Turning the Terror Tide

Democratic Representative for central New Jersey Rush Holt discusses the Surveillance State Repeal Act he introduced last week:

This isn’t reform. This is repeal. I voted against both of those [the Patriot Act and the FAA] before. And actually against Patriot before multiple times. Those bills were misguided in their specifics, and now seeing what various agencies have done to stretch the language of those bills to cover things that were never intended to be covered makes clear that they’ve got to go. Even Rep. James Sensenbrenner (R-Wis.) [the author of the Patriot Act] has said it was never intended to be used that way... I sat on the House Permanent Select Committee on Intelligence and chaired the Select Intelligence Oversight Panel, which was created at the recommendation of the 9/11 panel, and should be continuing except that Speaker [John] Boehner abolished it when he took office. So having dealt with the leaders of the intelligence committee, not much surprises me. They’re in the business of secrecy and deception. And unfortunately it carries over to their interaction with Congress...

I actually believe that violating the Fourth Amendment keeps us less safe. When the FISA court allows government functionaries, however well-meaning, to make decisions that should be made by an independent judge about who is worthy of suspicion, who should be collected on, then you end up with a situation where those who surveil and detain are operating on their own hunches. They can easily end up with unchecked wild goose chases or witch hunts. The idea of the Fourth Amendment is not to get in the way of law enforcement and intelligence, but rather to see that they do a good job by having to prove at each step of the way that they know what they’re doing, that they’re not off running down hunches and going off on wild goose chases and witch hunts. So I’m not sure what the NSA folks and folks like Clapper have been saying behind closed doors about how effective this stuff is, but I watched it for years, and it is not effective at keeping Americans safer on balance...

What led up to the Patriot Act, in 2001, was a very dramatic change in American surveillance law and practice. The practice changed before the law changed. The FISA Amendments Act was brought forward under the law [to provide a legal basis for] activities that were already under way. To say repealing them is a dramatic change in U.S. intelligence law, I would say, well no, it is undoing the dramatic change that occurred in our moment of fear...

[T]he legislation provides whistleblower protection for people who work in the intelligence agencies. Right now, they have no whistleblower protection comparable to what exists in other agencies. Especially in the [intelligence] agencies we need that. In agencies that are dominated by secrecy and deception, Congress simply won’t know and surely the public won’t know either what is being done in their name. If there had been whistleblower protection, I’m quite sure that Snowden would not have done what he did. Yet we could have, as the president has said, a national debate about what needs to be done in spying on Americans and others. My bill essentially extends to employees of the intelligence community the kinds of protections that exist in other agencies. They would be able to go to Congress or to designated officials like inspectors general without having to fear workplace retribution. Think of the case of Thomas Drake. He uncovered what I think would have to be called waste and perhaps fraud [at the NSA], and he took that up the chain, and he was severely disciplined for it. It hurt him professionally, and as we know, the way the story played out, the court chastised the NSA for the treatment. It just shows that you can’t take this up the chain in the agency as a whistleblower and expect fair treatment.

Representative Holt's proposal is the clearest of a host of expressions of dismay and the need for action in the face of recent (for some) revelations of NSA, FBI, CIA, and Homeland Security overreach, a turning of the Terror Tide the significance of which is not exhausted by its likely failure in the present (although the surprise House vote a week ago to defund formally-legalized but patently-Unconstitutional NSA spying already came stunningly close to success) but in its rhetorical framing of the issues, in its establishment and amplification of a momentum for change, and in its laying of the legal groundwork for eventual repudiations and reforms, the sooner the better.