NSA ‘Reform’: The Limits of Legislation

The push for "reforming" the National Security Agency is on, with a number of bills in the congressional hopper, notably a joint effort by Senators Ron Wyden, Rand Paul, Mark Udall, and Richard Blumenthal that sets a legislative marker for the civil libertarian agenda. The Intelligence Oversight and Surveillance Reform Act would:

• End the bulk collection of Americans’ phone, email, and other records.
• Close the "backdoor" searches loophole that allows the government to spy on Americans’ without a warrant.
• End the secret FISA "court" star chamber and let both sides be heard in a legal proceeding the Founders would recognize as constitutional.
• Make the NSA and other government snoops answerable for their actions in the federal courts.

This is all well and good, and the Senators are to be commended for their strategic sense in putting maximum demands out there. That sets the tone of the debate. I’m afraid, however, that Sen. Wyden is right when he predicts a faux "reform" effort aimed at conducting business as usual. The idea is to dress up and codify the most egregious violations by tweaking the rules around the edges without any really fundamental change in policy and procedures.

Furthermore, I would add, the success of this phony "reform" effort is virtually assured, since the conditions that led to the NSA’s usurpation of the Constitution have yet to be ameliorated, or even widely understood.

The official response to the revelations of Edward Snowden, as reported by Glenn Greenwald, Laura Poitras, and others has been, as Greenwald puts it: "THE TERRORISTS!!!" Twelve years have passed since the 9/11 attacks, an entire generation has grown up in the shadow of endless war, and yet waving the bloody shirt is still effective enough to ward off attempts to rein in the Surveillance State. That’s because hanging over even the most convinced civil libertarian in the Senate is the looming question of what happens if another 9/11-type attack occurs, perhaps on an even greater scale. In that event, if the Intelligence Oversight and Surveillance Reform Act passes – an unlikely outcome, see below – won’t its supporters be blamed for purportedly blinding the NSA to the next incoming threat?

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