Don’t let the ISIL threat sink surveillance reform

When Edward Snowden pulled back the curtain on the National Security Agency’s mass surveillance programs, a war-weary American public finally had its eyes opened to the profound expansions of executive power that occurred after 9/11. But in the week since President Barack Obama announced a new open-ended campaign to “degrade and ultimately destroy” the jihadi group known as the Islamic State in Iraq and the Levant (ISIL), one can’t help worrying that the lessons of the past decade will fade from our collective memory.

After the release of ghastly videos depicting the beheading of two American journalists, polls indicate that as many as 76 percent of Americans support increased strikes against ISIL, even though close to 70 percent have little or no confidence the attacks will succeed. A CNN poll found that Americans overwhelmingly believe ISIL is a threat to the United States and 71 percent think the group has agents in the country, despite the administration’s (quieter) admissions that ISIL poses no credible threat to American soil.

The numbers suggest that the visible brutality of ISIL is serving both the propaganda goals of ISIL and the U.S. military establishment’s attempts to sustain the post-9/11 security state indefinitely. Obama is not offering any justification beyond a 13-year-old military authorization and the hypothetical idea that ISIL — at some indeterminate point in the future — might pose a threat to the U.S. But apart from reinvigorating the United States’ eternal war on terrorism, the threat of ISIL could derail much needed reforms to the mass surveillance programs exposed by Snowden. With congressional hawks already using ISIL to justify preserving those powers, what happens next could determine whether mass surveillance is reined in or entrenched for the foreseeable future. 

At the center is the USA Freedom Act, an NSA reform bill proposed by Sen. Patrick Leahy, D-Vt., which recently came under attack from a host of Republican lawmakers. In The National Journal, the ever apocalyptic Sen. Lindsay Graham, R-S.C., cited ISIL in declaring that “now is not the time to degrade our capability to pick up an attack before it happens.” Sen. Saxby Chambliss, R-Ga., a member of the Senate Intelligence Committee, was even more explicit, claiming that “the ability to monitor” ISIL would be “eliminated in the Leahy bill,” and Sen. John McCain, R-Ariz., projected that support for the bill would fade as Obama ramps up his campaign.

That Graham and others would use ISIL to scaremonger about the Freedom Act is ridiculous, considering the bill was recently endorsed by the intelligence community, which specifically said it would not degrade U.S. anti-terrorism capabilities. The bill includes changes to the NSA’s Section 215 phone metadata program, under which the agency collects the calling records of virtually every American despite being declared illegal and proved to have prevented zero terrorist attacks. The new system would have phone service providers such as Verizon and AT&T retain the records rather than the NSA and require the agency to provide a specific “selection term” that is “relevant” to a terrorism investigation and “reasonably believed” to be linked to a foreign power.

Nevertheless, there are legitimate concerns that the Freedom Act does not end bulk collection as originally promised. Just before it passed in the House, the bill was subject to stealthy backroom modifications that gave enormous leeway to intelligence agencies. The current version in the Senate is better but not by much. In a recent letter (PDF) to Congress, a coalition of civil liberties groups led by Pentagon Papers whistleblower Daniel Ellsberg points out various loopholes in the bill’s language, including its failure to protect against warrantless backdoor searches, that allow the NSA to continue collecting Americans’ data in bulk by using overly broad selection terms and merely changing the rate at which data is handed over, from daily to weekly.

The bill does nothing to address the use of Executive Order 12333, the Ronald Reagan–era mandate that authorizes the mass collection (and use in court) of U.S. person data collected “incidentally” by foreign intelligence dragnets. Further, it doesn’t touch on the Section 702 authority that compels companies such as Google and Apple to hand over data about their customers. Recently Yahoo revealed that the government threatened the company with fines of $250,000 per day when it challenged such requests. It’s for these reasons that privacy advocates are rightly worried the bill will be a poison pill, making only modest changes while taking the wheels off any future attempts at comprehensive surveillance reform. But letting the bill drown in ISIL scaremongering could be even worse, crushing the momentum of the past year’s revelations under a new round of manufactured fear.

Amid the latest round of justifications for a continued data dragnet, we should remember the logic that sent us down this path in the first place: that military might and surveillance protect American lives. But if this were truly the security state’s prerogative, why is it still so difficult for proponents to cite a single case in which mass surveillance thwarted an attack? Of the 13,288 people killed by terrorist attacks globally in 2011, only one-thousandth of one percent (0.001 percent) were U.S. citizens. Even if ISIL posed a credible threat to the U.S., it has been well established that the chances of Americans being killed by terrorists anywhere is about the same as being crushed to death by falling furniture, whereas they are eight times more likely to be killed by a police officer, among other hazards.

To be clear, ISIL is a brutal and repugnant group that deserves to be undermined and destroyed. But how we choose to make that happen should have no bearing on the need to reform reactionary policies that were crafted while the fires of 9/11 still smoldered. Instead of desperately trying to prevent possible terrorism every time a group such as ISIL rears its ugly head, we should remember that terrorism — by definition — is a rare and spectacular act and deserves a much lower ranking on our list of concerns.