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America’s Metastasizing Intelligence Apparatus

No Associated Press content was harmed in the writing of this post

Barack Obama’s reversal on the Patriot Act was in the news again this week courtesy of Elizabeth Gorman’s reporting (via). It is not cynical or misanthropic to say the reversal is not surprising. He ended up supporting the FISA Amendments Act last year, and that should have reasonably set any observer’s expectations for him on civil liberties. Sure, he initially announced his opposition and pledged to stand with Chris Dodd, but when it came time for a decision he voted to pass it. So when Gorman highlights Obama’s prior statements opposing the Patriot Act it just seems to be of a piece with his, shall we say, evolving position on the issue.

Moreover, he is president now and that fact largely trumps other factors. Whatever his prior statements or native inclinations, he has a job that comes with powers he will not voluntarily give up. That is simply human nature. Anyone who receives new authority will want to use it or at a minimum hold it in reserve. Few will lightly relinquish it.

The rising tension Gorman details between the president and Congressional Democrats – particularly in the House – might provoke a confrontation for political reasons. His loudest ally there on the Patriot Act is Republican Jim Sensenbrenner, while Democrats John Conyers and Jane Harman are leading the pushback. Similarly, his newly announced position on Afghanistan is receiving at least tempered approval from both former and current Republicans, while Democrats are considerably more tepid. Health care reform now seems focused on courting conservative Democrats and GOP Senator Olympia Snowe. Financial reform is facing hurdles from a disgruntled Congressional Black Caucus.

It all adds up to an increasingly disaffected majority. The prospect of going into an election year with a president siding with the right on major issues and an absence of significant policy achievements for liberals could easily add up to big losses on the left. Those who feel they are facing a disaster at the ballot box in eleven months might not be so sanguine about waiting for some master plan to come together in time for Election Day 2012.

Concerns about political mortality aside, there is an even better reason for Congress to begin confronting the president: a series of separate articles that highlight just how ignorant Congress has become on intelligence collection and surveillance. First was the report that Sprint Nextel provided customer location data over eight million times in the last year. Even taking into account the important caveats raised by Kim Zetter, there clearly is a great deal of data being accessed with no oversight by or reporting to Congress. As seems usual in these cases, we have only the earnest assurances of those involved as guarantee that abuses are not happening.

The source for Zetter’s reporting was Indiana University graduate student Christopher Soghoian, which was also true for another of her posts Tuesday (via), this one on the difficulty of finding out what kind of transactions are going on between the Department of Justice and internet companies. Based on the reluctance of Verizon and Yahoo to comply with FOIA requests it seems there is at least the possibility of objectionable (or illegal) activity going on.

Meanwhile, the story of the CIA’s destruction of videotaped torture sessions was added to by the news that the agency destroyed the tapes after receiving a letter from Harman advising it not to destroy them. While this scandal is from the Bush administration, it nicely illustrates the contempt intelligence agencies seem to have for Congress. Considering the current administration’s relationship with the CIA it does not seem that any probing (even into activities that predate it) would be very welcome.

Finally, there is the Electronic Frontiers Foundation’s lawsuit over executive branch ("encompasses the Central Intelligence Agency, Departments of Justice, Defense and Homeland Security, the Treasury and Director of National Intelligence") collection of data from social networking sites. Yes, users voluntarily join such sites and can use privacy controls, but that does not mean the government has the right to indiscriminately scour such sites for user information. (Does it?)

Taken together, these stories draw a picture of aggrandized intelligence and federal law enforcement agencies very quietly getting their hooks into more and more data streams with minimal accountability. Congressional Democrats have good reasons to flout the president’s wishes on some policy issues, but the body as a whole would seem to have an interest in coming to grips with surveillance activities that are happening increasingly out of its sight. Institutional prerogatives would seem to trump ideology or party affiliation in these matters. It certainly has at the other end of Pennsylvania Avenue.

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