Spook Rebuke

By Kevin D. Williamson

Saturday, June 21, 2014

Usually, a surprising late-night vote in the House is bad news, but passage of the Massie-Lofgren amendment was a pleasant surprise: It would use the power of the purse to block the National Security Agency’s warrantless dragnet spying on Americans’ electronic communications, as well as halt the agency’s efforts to cajole hardware makers into installing so-called back doors for federal snooping convenience, providing a useful stopgap measure while the House and the Senate attempt to work out a package of meaningful NSA and surveillance reforms.

Keep in mind what the NSA is up to. This goes well beyond a sniffer program scanning Karachi-bound text messages for “Death to the Great Satan! Allahu Akbar!” The NSA has been intercepting laptop computers being shipped to customers in order to install software bugs in them, redirecting Web traffic to install malware on computers, installing agents in video games, and generally behaving like an implausible villain in a Robert Ludlum novel. It is using the flimsiest rationales to extend its surveillance to domestic targets. The toothless USA Freedom Bill passed by the House last month was intended to curtail some of this, but would have relatively little practical effect even if it were to become law, its enforcement protocols being remarkably loosey-goosey. The bipartisan amendment put forth by Kentucky’s Thomas Massie (R.)  and California’s Zoe Lofgren (D.) passed 293 to 123, and would impose funding restrictions as well as implement a specific ban on any agency effort “to mandate or request that a person redesign its product or service to facilitate” surveillance.

Representative Massie says that the surveillance issue comes up at practically every town hall he conducts. “People are tired of being spied on,” he says.

There have been several legislative efforts to bring the domestic-spying apparatus under control, and all of them have failed. The FISA Amendments Act, for example, contains a number of provisions intended to protect U.S. citizens and legal residents from surveillance under what is, after all, the Foreign Intelligence Surveillance Act, but the evidence, including a heavily redacted FISA court opinion on the subject, suggests very strongly that federal authorities are operating as though effectively unbound by that law. Given that cash is fungible and that there is a great deal of it floating around these agencies, mere financial restraints may not be enough to do the job, but they would represent a step in the right direction.

“We passed the Freedom Act about a month ago here in the House,” Representative Massie says, “but the bill got watered down significantly in committee. Then, when it came out of committee, it went behind closed doors in negotiations with the intelligence community, and when it came out to the House we weren’t allowed to offer amendments. Roughly half of the cosponsors dropped our support, because we didn’t even recognize the bill at that point.”

Representative Massie concedes that further reform is needed, and predicts that his amendment will not make it into law, given that the defense-appropriations bill is likely to be superseded by an omnibus spending bill down the road.

The good news is that support for reform is apparently deep and bipartisan. “The thing that surprised me last night was we got a majority of Republicans and a majority of Democrats,” Representative Massie says. “I expected a majority of Democrats, but wasn’t sure a majority of Republicans would support it. The opposition came from the intelligence and judiciary committees, which have jurisdiction over this. The leader and the whip were also against it. But the good news is that the whip-elect [Steve Scalise of Lousiana] and the conference chair [Cathy McMorris Rodgers of Washington] did vote for it. Nancy Pelosi voted for it as well.”

He is hoping for help from the Senate, where Kentucky’s Rand Paul (R.), Oregon’s Ron Wyden (D.), and Colorado’s Mark Udall (D.) are pressing for a more robust package of surveillance reforms, writing in a joint op-ed:

    This package of reforms includes overhauling domestic surveillance laws to ban the bulk collection of Americans’ personal information, and closing the loophole that allows intelligence agencies to deliberately read Americans’ emails without a warrant. It includes reshaping the Foreign Intelligence Surveillance Court by installing an advocate who can argue for Americans’ constitutional rights when the court is considering major cases, and by requiring that significant interpretations of U.S. law and the Constitution be made public. And it would strengthen and clarify the government’s authority to obtain individual records quickly in genuine emergency situations.

The world is full of people who mean us harm, and relying upon our intelligence agencies to take the lead against them is unquestionably preferable to the first-choice alternative, which apparently is invasion, occupation, and nation-building, each step of that process carried out less competently than the one before. But there is no getting around the fact that government is government, and the spooks at the NSA are cut from the same cloth as the teapot tyrants at the IRS, and such bad habits as they may have are very likely to be amplified by the covert nature of the agency’s work. We need to establish — more precisely, reestablish — some fundamental principles here. The first of those principles is that the U.S. government’s relationship to U.S. citizens is fundamentally different from its relationship to foreigners. To put it bluntly, killing foreign nationals in the name of security may or may not be wise or effective, depending on the circumstance; killing American citizens outside of some very well-defined contexts, such as a battlefield, is a crime, one that the current administration insists that it is legally empowered to commit with impunity. The second principle is that U.S. military and intelligence forces operate under a different set of rules at home from those under which they operate overseas. (Assuming no second attack on Fort Sumter, the military really isn’t supposed to be doing much of anything at home.) We have a system of warrants, court orders, and the like for a reason, and that reason is because two thousand years of experience suggests very strongly that mere men cannot be trusted with arbitrary power, especially power backed by armies and navies.

Representative Massie, like Senator Paul a transplant to Kentucky, represents an emerging strain within the Republican party, also typified by new leaders such as Representative Justin Amash of Michigan, broadly described as “libertarian” but not really quite so ideological as that label suggests. There is a proper scope, scale, and role for the federal government, and those who intuit that it has well outgrown those proportions are by no means limited to card-carrying members of the Circle Bastiat and the Mont Pelerin Society. What this is is not doctrinaire libertarianism but a genuine conservatism that has made less of an accommodation with the entrenched assumptions of Washington. And it is far from fringe: More than two-thirds of the House, including, as noted, a majority of both parties, voted for the Massie amendment. Republicans looking for a way forward could do worse than to take note of that fact.

The first duty of the federal government is the physical security of the American people, and it is important that we invest it with reasonable resources and power for achieving that. But that does not mean anything and everything that the intelligence and security agencies might dream up. Brave and patriotic men and women though they may be, they are as vulnerable to mission drift and institutional myopia as any functionary in the Department of Commerce or Environmental Protection Agency. It is not that al-Qaeda et al. are not dangerous, which they certainly are — it’s that an unchecked United States government is potentially many orders of magnitude more dangerous.