Snowden and the Civil Libertarians Lost

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When the USA Freedom Act was signed into law, the ACLU’s Jameel Jaffer declared it “a milestone [and] the most important surveillance reform bill since 1978.” But only a few days earlier he pooh-poohed it as only “a very, very small step” forward and “between USA Freedom …  and sunset [of the metadata bulk collection program], our preference is sunset.” This week the Electronic Freedom Foundation cheered: “Technology users everywhere should celebrate.” But last month, it withdrew its support for the bill, complaining about compromise language and insisting “Congress must do more to rein in dragnet surveillance by the NSA.”

In an interview with Democracy Now just before passage, Edward Snowden confidant Glenn Greenwald triumphantly declared "the only reason why the Patriot Act is going to be reformed is because one person was courageous enough, in an act of conscience, to come forward.” But minutes later, Greenwald conceded that "it leaves overwhelmingly undisturbed the vast bulk of what the NSA does, and it’s very unlikely that there will be another reform bill, which means that the NSA’s core mission and core activities will remain unreformed and unchanged.”

Senate Majority Leader Mitch McConnell, who opposed the USA Freedom Act as too tough on the NSA, thundered on the floor before the vote that the bill amounted to a “resounding victory for Edward Snowden.” But the civil libertarian two-stepping exposes the truth: Snowden lost.

As one former intelligence official told the Daily Beast, “What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing-burger for the privacy community.” Turns out one of the main reform planks – having telecommunications companies instead of the NSA collect personal metadata in bulk – is a logistical efficiency, not a restraint on surveillance. “It’s very expensive and very cumbersome,” said the official. “Good! Let them take them. I’m tired of holding on to this,” said another.

The final House bill loosened the already ambiguous criteria for warrants from earlier versions of the bill, upsetting privacy activists. For example, the NSA’s requests for metadata must be limited to the “greatest extent reasonably practicable … consistent with the purpose” of the operation. As one civil libertarian fretted, “If the purpose of the government is broad” then the request “will be quite expansive, too.”

Also moving civil libertarian groups to drop their support of the bill was the federal appellate court ruling that the Patriot Act never authorized the NSA’s metadata bulk collection in the first place. Suddenly, the USA Freedom Act became a vehicle that would, for the first time, explicitly authorize a de facto metadata collection program.

Two years after the Snowden leaks, the result is reform that the NSA likes and Snowden’s acolytes deep down don’t. So how exactly did Snowden fundamentally alter the political landscape?

He didn’t change public opinion. A CNN poll released this week found 61 percent of Americans want to renew the law that allows the “National Security Administration to collect and analyze information on the phone calls of most Americans in order to locate suspected terrorists.” For years, the Pew/Washington Post poll has asked if it was more important “for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy” or “for the federal government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats?” Support for the former was at 62 percent just after the Snowden leaks and was at 63 percent back in January.

Snowden himself has made a lighter impression on Americans than you might have thought. In April, HBO’s John Oliver showed Snowden video of people on the street who didn’t know who he was, and told him, “On the plus side, you might be able to go home because it seems like no one knows who the f*** you are.”

Because grassroots Americans were not interested in a dramatic curtailing of surveillance authority, Congress responded with a law that keeps the NSA in business. Nevertheless, even if privacy advocates didn’t get what they did, should we praise Snowden for getting us to this point?

“None of this debate would have happened without Snowden’s revelations” is a tautology we often hear. But that assertion is based on the assumption that the NSA was out of control, the checks and balances provided by the congressional intelligence committees and the FISA court had failed, and only the exposure provided by Snowden could rein in the security state.

NSA critics have long buttressed that contention by pointing to the declassified 2009 FISA court ruling by Judge Reggie Walton, which found that the NSA had been violating privacy rules for more than two years. But in a CNN interview last month, Walton characterized that ruling as an example of the NSA complying with our system of checks and balances: “I had no reason to believe during the seven years I served on the court that anybody at NSA nefariously did anything in reference to data that they were acquiring. Sometimes in the attempt to try and keep the country safe, mistakes occur. But I never found anything that they did was malicious. And I also found them to be very forthright. Whenever they realized that something had gone astray, they brought that information to us.”

We’ll never be able to fully test the counter-factual. But Walton’s testimony suggests that the NSA could have experienced mild, incremental reform similar to the USA Freedom Act without the risks inherent in leaking classified information about our counter-terrorism operations.

Snowden did win in one sense. He has said that what he wanted was for the public to decide the scope of government surveillance: “The consent of the governed is not consent if it is not informed.” The public has had plenty of opportunity to weigh in, and in line with public opinion, our elected officials produced legislation that largely keeps the NSA’s surveillance operation in business. The system works.

Bill Scher is a senior writer at Campaign for America's Future, executive editor of LiberalOasis and a contributor to RealClearPolitics. He can be reached at contact@liberaloasis.com or follow him on Twitter @BillScher.

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