The revised eavesdropping program that the U.S. Senate finally passed on Tuesday and sent to the president doesn’t go as far as some civil-liberties advocates wanted, but it’s the first time that Congress has placed limits on the government’s ability to spy on Americans after 9/11.
That alone should bring a measure of satisfaction to Americans who fear that the national-security apparatus of the government in Washington has gone too far in the direction of snooping, at the expense of the legitimate privacy rights of U.S. citizens.
The USA Freedom Act, as it is now called, will end the National Security Agency’s wholesale phone-records collection program and replace it with a more-restrictive measure to keep the records in the hands of phone companies. Most of the programs of the old Patriot Act will remain intact in the new law, but significant, and welcome, changes have been enacted.
Now the government will need court orders to obtain data connected to specific numbers from the phone companies, which typically store them for 18 months. That represents a meaningful improvement in the law. Moreover, the new law creates a panel of outside experts to advise the Foreign Intelligence Surveillance Court, which up to now has largely gone along with whatever the Bush and Obama administrations have requested.
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To their credit, members of the Senate also resisted a push by Senate Majority Leader Mitch McConnell, R-Ky., to strike a provision that would declassify some significant opinions by the secret surveillance court. In the end, Sen. McConnell, who fought against all the improvements in the House-passed version of the bill that the Senate ultimately approved, was effectively rebuked by members of his own party, who refused to follow his lead on a variety of bad amendments.
Beyond the actual changes in the law, the best aspect of the months-long effort to revise the old Patriot Act is that the people’s representatives in Washington actually held a long-overdue public debate on the fundamental question of the struggle between privacy and national security.
The revelations of Edward Snowden showed that the government had stretched the provisions of the Patriot Act to a point that shocked many Americans, not to mention more than a few members of Congress, and it was all done in secret. Repeated assertions by intelligence officials, and even President Obama — that it was all “for our own good” — did little to erase suspicions that the government was enhancing its powers of surveillance and intrusion without regard to the rights of citizens and the Fourth Amendment of the Constitution.
There is a lesson here for future administrations, and for future generations.
The first is that if the government wants Americans to accept a controversial program, it must never fear to present its arguments in public, where they can be subjected to the rigor of debate and skeptical inspection. That’s basic democracy.
The other lesson is that citizens who are stampeded into accepting encroachments on their liberties wake up one day and find the government has gone too far. In the wake of 9/11, there was little public support for those who questioned whether the Patriot Act was an overreaction that did more harm than good, posing a threat to basic liberties. The public’s fears were understandable, but, with the advantage of hindsight, it now appears the skeptics were right.