Post-9/11 politics: Scaling back domestic snooping

Politically speaking, we’ve come a long way from 9/11.

In the aftermath of those attacks, with emotions running high, Congress speedily passed the Patriot Act and thus gave a virtual blank check to Big Brother. Republicans stood with President Bush in prioritizing national security over personal privacy; Democrats fell into line, fearful as always of being tagged “soft on terrorism.” When the act reached the Senate floor, only one solitary lawmaker – Democrat Russ Feingold – voted No.

But take a look at what happened yesterday: 67 senators – including 23 Republicans – voted for the first time since 9/11 to put some restrictions on domestic surveillance, to tilt the balance a bit more toward privacy. The bill, passed weeks ago by the Republican House and signed last night by President Obama, nixes the National Security Agency’s routine vacuuming of call data from the telecommunication companies. Starting six months from now, the NSA won’t be able to scrutinize who we call and when; instead, the phone companies will keep the data, and the NSA can search it only on a court-ordered case by case basis.

This historic rollback shows you how radically the political landscape has changed.

Back in the autumn of ’01, Americans seemed desperate to curb their freedoms. In one national poll, 75 percent said they’d accept random police checks of their cars; 67 percent said they’d support the random monitoring of their snail mail; 54 percent were fine with the monitoring of their phones. Back then, nonpartisan pollster John Zogby told me, “I’ve never seen anything like this before. The willingness to give up personal liberties is stunning, because the level of fear is so high.”

That same week, Ralph Neas, a civil liberties activist in Washington, lamented to me, “Let’s face it, the Bill of Rights doesn’t tend to play well in times of crisis.” But Bruce Fein, a former Reagan Justice Department aide, told me that the Patriot Act provisions were perfectly appropriate: “The citizens’ right to be free from clear and present terrorism is every bit as much a civil liberty as the individual right against government overreach.”

Today, the zeitgeist is different. According to a poll released last week by the nonpartisan Pew Research Center, 54 percent of Americans now oppose the government vacuuming of phone and web data (Edward Snowden’s revelations have probably been influential); and 74 percent now say that, even in an era of heightened security, they’re averse to giving up their privacy and freedoms. Most politicians in Washington are heeding this new public mood.

Senate GOP leader Mitch McConnell did not heed the mood. He pushed this spring for a routine renewal of the Patriot Act and the NSA snooping program – stances that used to be Republican slam dunks – and discovered, much to his vocal annoyance, that he’s now a minority voice within his own party. A new generation of post-9/11 Republicans, many of libertarian bent, viewed the NSA snooping as a breach of the Fourth Amendment ban on unreasonable government seizures.For instance, tea-partying congressman Justin Amash: “No serious representative or senator thinks it’s OK to reauthorize unconstitutional spying on all Americans.”

These Republicans were buttressed last month by a federal appeals court ruling which called the NSA snooping “an unprecedented contraction of the privacy expectations of all Americans.” And a new study – authored by the Privacy and Civil Liberties Oversight Board, an independent agency created by Congress – found no evidence that the snooping had ever stopped a terrorist attack. As board chairman David Medine told the press, “We found on a number of metrics, including thwarting plots and identifying terrorist activity, the program had not proven to be successful.”

So what we’ve just witnessed, in both chambers, was a rare bipartisan movement. Privacy-minded and tea-partying Republicans teamed up with formerly timorous Democrats to put some curbs on domestic surveillance.

Granted, we shouldn’t oversell this occasion. The massive post-9/11 national security apparatus remains largely intact; rest assured that if the government wants to snoop on your life, it will find a way, with whatever legal fig leaf. But unlike in the frenetic autumn of ’01, when there was little substantive debate about privacy and civil liberties, at least we’re getting it now – from politicians in both parties, and from the courts.

What Russ Feingold said, back when he stood alone in the Senate (the Patriot Act was passed, 98-1), is finally starting to resonate. In an October ’01 speech, Feingold warned that under the act, “the government can apparently go on a fishing expedition and collect information on virtually anyone.” He said that allowing the government to “eavesdrop on your phone” would “probably not be a country in which we would want to live.”

In short, “We must redouble our vigilance to ensure our security and to prevent further acts of terror. But we must also redouble our vigilance to preserve our values and the basic rights that make us who we are….Preserving our freedom is the reason that we are now engaged in this new war on terrorism. We will lost that war without firing a shot if we sacrifice the liberties of the American people.”

 

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