The warnings by Oregon Senator Ron Wyden about sweeping surveillance of U.S. citizens in the name of national security became chillingly real last week amid media revelations of extensive federal government data mining.
A leaked document revealed the National Security Agency acquired phone records from Verizon and the Guardian and Washington Post separately reported NSA data-mining of the Internet, including emails, photo and voice data and connection logs. The monitoring apparently was approved by the secret Foreign Intelligence Surveillance Court and is legal under the federal Patriot Act of 2007 and Foreign Intelligence Surveillance Act of 2008.
A member of the Senate Intelligence Committee, Wyden has been discreet in his repeated warnings. He was less so in media interviews, such as the one he gave to POLITICO. ”I will tell you from a policy standpoint, when a law-abiding citizen makes a call, they expect that who they call, when they call and where they call from will be kept private. As a result of the publications today, there’s going to be a big debate about this, and I think it’s appropriate.”
While civil libertarians applauded Wyden's stand questioning the constitutionality of this surveillance, there was remarkable bipartisan unity on Capitol Hill in defending government data-gathering. Democratic and Republican leaders said meta-data analysis has foiled terrorist plots on American soil. President Obama made an unusual 10-minute digression in comments at his Palm Springs meeting with Chinese President Hu Jintao to reassure Americans that "no one is listening to your calls."
The Atlantic ran a story saying the birth of "Surveillance State" originated in the Senate Intelligence Committee when it criticized NSA for failing to tap modern technology in its counter-terrorism efforts. This admonition came in the committee's official report listing "mistakes that led to 9/11."
The NSA was described as a Cold War dinosaur, out of touch with the emerging threats of a more nimble nemesis posed by al-Qaida. NSA and FBI officials use meta-data to find "key intersections" of information that offer clues to potential and actual terrorist acts. Former NSA senior director Philip Bobbitt, writing in a New York Times op-ed, called this data the "threat matrix" and described how it could have warned security officials of the 9/11 terrorist attack before it happened.
Massive data collection hasn't always gone smoothly for NSA. An early data-mining program, called Trailblazer, turned into a boondoggle, The Atlantic says. Even more recent efforts have their drawbacks as security officials admit there is more data collected than can be analyzed.
Which brings the conversation back to Wyden and his warnings. As recently as March 12, Wyden grilled James Clapper, the director of national intelligence, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Clapper said, "no, sir." After Wyden persisted, Clapper explained, "Not wittingly. There are cases where they could, inadvertently perhaps, collect, but not wittingly."
After last week's revelations, Clapper told the National Journal, "What I said was, the NSA does not voyeuristically pore through U.S. citizens' emails. I stand by that."
Wyden and Senate Intelligence Committee colleague Mark Udall of Colorado aren't exactly saying there shouldn't be surveillance. Their objection is the secrecy surrounding the surveillance. These programs, Wyden said, "should never be a secret from the American people" because of the potential impact on their Fourth Amendment rights protecting again unreasonable search and seizure without a warrant and probable cause.
The public debate Wyden seeks on Fourth Amendment rights ironically was already underway after a 5-4 U.S. Supreme Court ruling allowing law enforcement officers to take routine DNA samples for people who are arrested to check it against a national database for potential links to other crimes not related to the arrest.
Pundits wondered what James Madison, who fashioned the Bill of Rights, including the Fourth Amendment, would have thought about DNA samples and big data mining. What's more important is what Americans today think about these new threats to their liberty in the face of advancing technology and terrorist threats.