This article first appeared in the St. Louis Beacon: WASHINGTON – Concerned that government security could compromise individual liberties, U.S. Sen. Dick Durbin and a few other lawmakers have argued for years that more limits should be placed on the reach of the post-9/11 Patriot Act.
This week, in the wake of what he called “disturbing” revelations of widespread National Security Agency scrutiny of telephone records, Durbin, D-Ill., said, “This important debate must begin again.” In the past, Durbin has sought unsuccessfully to limit such powers.
But Durbin’s ally and friend from his home state, President Barack Obama, said Friday in California that critics of the NSA phone-record scrutiny and the government’s mining of internet data under the “PRISM” program are exaggerating its impact on Americans.
“Nobody is listening to your telephone calls,” Obama said about the NSA’s collection of phone records of Verizon customers under a secret court order. He added later, “You can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience. We’re going to have to make some choices as a society.”
Privacy vs. security
In the immediate aftermath of 9/11, most Americans – and their representatives in Congress – were willing to give up some privacy and liberty for the greater good of helping the government protect them from terror attacks. But revelations about the extent of the scrutiny, as first revealed in newspaper reports this week, may alter opinions.
The American Civil Liberties Union has called for a full congressional investigation of the NSA and Federal Bureau of Investigation data mining, with the director of its Washington office, Laura Murphy, asserting that lawmakers should “fully uncover the scope of these powers and their constraints, and it must enact reforms that protect Americans’ right to privacy and that enable effective public oversight.”
But Obama – who acknowledged having a “healthy skepticism” about the secret programs before he became president – said Friday that Congress has been repeatedly briefed on such activities, and that his administration had “scrubbed” the program to expand oversight and safeguards.
“We scrubbed them thoroughly,” Obama said. “We actually expanded some of the oversight, increased some of the safeguards. But my assessment and my team’s assessment was that they help us prevent terrorist attacks. And the modest encroachments on privacy that are involved in getting phone numbers or duration without a name attached and not looking at content, that on net it was worth us doing.”
Part of the debate focuses on how invasive the collection of “metadata” – for example, the lists of calls a person made, rather than a tape of his/her conversations – can be to personal privacy. In an op-ed, ACLU policy analyst Jay Stanley argues that analyzing such metadata can be highly intrusive.
“Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person's problems,” he wrote. “In addition sophisticated data-mining technologies have compounded the privacy implications by allowing the government to analyze terabytes of metadata and reveal far more details about a person's life than ever before.”
What did Congress know? And what should it do?
In general, members of the House and Senate intelligence committees – on which U.S. Sen. Roy Blunt, R-Mo., had served for years – have been briefed on such activities and at least given tacit approval. However, a couple of members of the panel, U.S. Sens. Ron Wyden, D-Ore., and Mark Udall, D-Colo., have hinted about their concerns. They have not been more explicit because the committee had strict rules about disclosing information that is classified.
Last December, a few days after Christmas, the U.S. Senate briefly debated – then voted to reject – an amendment for the FISA surveillance reauthorization law by Wyden, Durbin and several other senators to define the extent of NSA data mining and surveillance.
Arguing for the amendment – which would have required a report to Congress on the issue – Wyden complained that Congress could not effectively conduct oversight when it “cannot get a yes or no answer to the question of whether an estimate currently exists as to whether law-abiding Americans have had their phone calls and e-mails swept up under the FISA law.”
Wyden also contended that the administration would not give “a yes or no answer to the question of whether wholly domestic communications between law-abiding Americans in this country have been warrantlessly intercepted under the law.”
Leading the opposition to Wyden’s amendment was U.S. Sen. Dianne Feinstein, D-Calif., who chairs the intelligence committee and who warned that Wyden’s goal was “to make information public about a very effective intelligence collection program that is currently classified. All of the information has already been made available to the Senate Intelligence and Judiciary committees.”
Feinstein said Wyden’s main beef was with what experts call “incidental collection” of data on Americans during an investigation of non-U.S. suspects. But she said there are plenty of safeguards in the law and in procedures.
“Section 702 authorizes the executive branch to go to the FISA Court – that is a federal court, federal district judges appointed by the chief justice of the Supreme Court – and obtain annual approval for the certifications of the attorney general and the director of national intelligence that identify categories of foreign targets,” Feinstein said.
Blunt, then a member of the intelligence panel (which he left a week later to join the Senate Armed Services Committee) voted with Feinstein against Wyden's amendment.
Durbin, the second-ranking Senate Democrat and chairman of the Judiciary subcommittee on the constitution, supported Wyden's amendment. He has been arguing for years that tighter limits need to be placed on surveillance programs.
Durbin's concerns over Patriot Act
“For over a decade, we’ve debated how best to protect America from terrorism while preserving the most basic constitutional rights,” Durbin said in a statement Thursday.
“I have tried to reform this provision of the Patriot Act for years, introducing legislation and offering amendments to ensure that secret demands for sensitive personal information on Americans be limited only to those with some connection to individuals suspected of being involved in plots against our country.”
In 2005, Durbin helped insert a provision in the Senate-passed reauthorization of the Patriot Act that would require “individualized suspicion” for what are known as Section 215 orders – allowing the government to issue such an order for an American’s records only if there is a connection to a suspected terrorist or spy. That provision was removed from the final bill after objections by former President George W. Bush’s administration.
In 2009, Durbin offered the same language as an amendment during the debate over the reauthorization of the Patriot Act. “As I said when I offered my amendment in 2009, ‘someday the cloak will be lifted and future generations will ask whether our actions today meet the test of a democratic society – transparency, accountability and fidelity to the rule of law and our Constitution,’” Durbin said.
“Today that cloak has been lifted and this important debate must begin again.”
Striking a balance
U.S. Sen. Claire McCaskill, D-Mo., who did not cast a vote on the Wyden amendment in December, said Friday that intelligence gathering, while necessary, should never go beyond what the law allows.
“We need to make sure our intelligence agencies have the tools necessary to go after terrorists, and keep America safe – but those tools must be consistent with American values,” McCaskill said in a statement to the Beacon. “Congress has been clear that all intelligence-gathering activities must be done within the constraints of the law.”
White House spokesman Josh Earnest told reporters Friday that Obama had no objections to a congressional and public debate about such issues – and said there have been such discussions for years. “He welcomes a public debate,” Earnest said.
In his remarks to the media, Obama said he had mentioned in a recent speech at the National Defense University that “one of the things that we're going to have to discuss and debate is how are we striking this balance between the need to keep the American people safe and our concerns about privacy. Because there are some tradeoffs involved.”
Obama said he welcomed such a debate as “healthy for our democracy. I think it's a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.
“And I think it's interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren't very worried about it when there was a Republican president. I think that's good that we're having this discussion.”