Over at The Atlantic, Conor Friedersdorf dives into the 2011 reauthorization of the Patriot Act, and he shows how the near-total secrecy of the National Security Agency’s bulk collection of U.S. phone-call information warped the public debate about the law. At the time, for example, newspaper reporters could only have guessed that the government was using the act’s Section 215 to collect and store huge amounts of so-called metadata about U.S. calls, and they focused instead on the possibility that the government might use the law to access individual suspects’ library records. The result was an impoverished national debate on the effects of the law, which just a little bit more transparency would have enriched substantially.
“Careful, informed commentators contributing arguments and analysis in the press unwittingly misled readers with content that lacked crucial context,” Friedersdorf writes. “Hard-news articles were just as useless for formulating an informed opinion.”
But, in the process of criticizing executive branch secrecy, Friedersdorf lets Congress off too easy.
“Legislators were misled,” too, he asserts, noting that some lawmakers have expressed surprise at and skepticism about the NSA’s bulk metadata collection program since leaker Edward Snowden revealed its existence. Yet last last month Director of National Intelligence James Clapper declassified a document that the Justice Department wrote expressly for members of Congress in 2011, a “Report on the National Security Agency’s Bulk Collection Programs.” The document explains that the NSA’s phone metadata collection operated “on a very large scale,” compelling telecommunications firms to turn over records “relating to substantially all of the telephone calls handled by the companies, including both calls made between the United States and a foreign country and calls made entirely within the United States.”
True, members of Congress had to make some effort to view the classified document, which they couldn’t show to staff or even read outside a secure location on Capitol Hill. But members of Congress who were in office in 2011 and yet now express shock at the NSA’s behavior apparently didn’t do their homework before they voted. Whatever you think of the NSA phone metadata program, or of how much Americans should have heard about it, that should bother you.