But 2008 wasn’t the first or even the last time Congress approved expansive surveillance authorities. In the original 2001 USA PATRIOT Act, the law permitted the government to collect data previously forbidden. During the Bush administration, scandals erupted over the Department of Justice Office of Legal Counsel issuing secret interpretations of U.S. law – torture, extraordinary rendition, surveillance and drone strikes all are supported by secret legal arguments locked up in the White House.
Rather than challenging the administration’s authority to secretly interpret and enact laws, however, Congress instead twice authorized them to keep everything a secret. Last year, Ron Wyden, a Democrat on the Senate Intelligence Committee, tried to prohibit secret legal rulings. He got voted down. That same year Senator Jeff Merkley, also a Democrat, added his own amendment to the renewal of the 2008 wiretapping law. His amendment was voted down by a strong margin in both parties.
So this latest outcry over expansive surveillance is really the culmination of over a decade of lawmaking. All three branches of government – the court order was approved by a FISA court – and both parties, in two administrations, have agreed consistently to enable and protect the practice.
An action’s legality does not make it wise. While extensive datasets are useful for doing pattern analysis, there is a legitimate fear that the government is expanding the terms of its surveillance unreasonably. That is an important debate that should have happened publicly already – back in 2001, or 2008, or 2012. Neither Congress nor the White House helped its cause by doing everything so secretively.
But the place where this broad, legal surveillance can be reined in is Congress, since they passed the laws to begin with. Congress created this mess, and they should be the ones to clean it up.
Joshua Foust is a freelance journalist based in Washington, DC. He was previously a military intelligence analyst. His website is joshuafoust.com.
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