Nearly a dozen years after the passage of the Patriot Act, rushed through Congress in an atmosphere of fear and intimidation, informed debate over the balance between liberty and security is long overdue. That includes a public examination of how widely and deeply the National Security Agency (and other elements of the “intelligence community”) may monitor Americans’ telecommunications without violating the Bill of Rights.
But that needed discussion isn’t enhanced by hysteria or the partisan opportunism it encourages. As others have noted already, the supposed revelation that the NSA is collecting metadata on telephone use in this country isn’t exactly startling news. The fugitive ex-CIA contractor Edward Snowden, who leaked documents concerning that program to the London Guardian and the Washington Post, may yet unveil more startling revelations from his peculiar refuge in China. But anyone paying attention has known about this program since 2006, when USA Today first disclosed its existence.
The most important difference today is that Americans are no longer too frightened by the constant “terror alerts” of the Bush administration to consider the boundaries of surveillance and security. Rather than hyping the terrorist threat, like George W. Bush and Dick Cheney, President Barack Obama has repeatedly framed a calmer — if equally resolute — attitude toward Islamist extremism.
So while facile comparisons between the Obama and Bush administrations now appear every day in the media, they are quite misleading. Uttered by Republicans and their mouthpieces on Fox News, such arguments are hypocritical, as well.
Consider the single most important surveillance controversy of the Bush era, namely the warrantless wiretapping undertaken on the president’s orders. In December 2005, The New York Times revealed that Bush had authorized the NSA to monitor phone calls and emails originating on U.S. territory, without obtaining warrants as required by the Foreign Intelligence Surveillance Act or FISA. (That’s why it was called “warrantless.”) For the first time since Watergate — and the intelligence reforms resulting from that true scandal — the U.S. government had eavesdropped on Americans’ conversations without seeking the permission of a judge.
Only months before, Bush had claimed publicly that he was a steward of civil liberties and that his agents always got a court order before implementing a wiretap. But his administration had been using warrantless wiretaps ever since the 9/11 attacks.
Those trespasses against liberty went considerably further than the collection of metadata by the NSA. No reports indicate that the Obama administration violated existing law to eavesdrop on any American — or listened to any calls without the sanction of the special FISA court.
Yet reaction to the recent stories about the NSA’s policies has been far more intense than eight years ago. Pundits and politicians have compared Obama unfavorably with Richard Nixon, berating him as a tyrannical betrayer of civil liberties. A few prominent Republicans even seem determined to ruin the NSA, solely because they wish to embarrass the president — a motive that other Republicans attribute to Snowden, whom they vilify as a traitor.
Not a peep was heard from Republicans on Capitol Hill when Bush, his Vice President Dick Cheney and their lawyers were practicing and promoting the theory of the “unitary executive,” under which any act ordered by the president in wartime, including warrantless wiretapping, is deemed inherently legal and exempt from judicial review. What exercised the Republicans in those days was the temerity of the Times in revealing what Bush had done.
As for Obama, the complicated truth is a mixed record on civil liberties. He tried and failed to close the prison at Guantanamo Bay, and he supported the renewal of the Patriot Act without changes. But he also substantially reformed the use of military commissions and abolished the use of torture, renditions and secret prisons. In ending the wars in Iraq and Afghanistan, he has rejected the “permanent war” ideology, which the Bush regime deployed as a political weapon against dissent.
So far there is little evidence that Obama shares the dangerous theories of Bush and Cheney—but no president should enjoy the kind of exemption from Congressional scrutiny that his predecessors exploited. Whatever Snowden’s intentions may be, he has inspired members of Congress to provide stricter oversight of the government’s gargantuan data gathering efforts, which are inherently prone to overreach even under the most responsible supervision. At the very least, Congress and the public need to know how the government wields its powers under the Patriot Act—an interpretation that remains classified and thus precludes democratic oversight.
The president’s response to that question will test his commitment to the Constitution he swore to uphold.